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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. McGlinchy v. State, Dept. of Natural Resources (8/7/2015) sp-7028

McGlinchy v. State, Dept. of Natural Resources (8/7/2015) sp-7028

         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  



JAMES P. MCGLINCHY d/b/a                              )  

M&M CONSTRUCTORS,                                     )        Supreme Court No. S-15277  

                                                      )  

                  Appellant,                          )        Superior Court No. 4FA-11-02830 CI  

                                                      )  

         v.                                           )        O P I N I O N  

                                                      )  

STATE OF ALASKA,                                      )        No. 7028 - August 7, 2015  

                                 

DEPARTMENT OF NATURAL                                 )  

RESOURCES, and DANIEL S.                              )  

SULLIVAN, COMMISSIONER OF                             )  

NATURAL RESOURCES,                                    )  

                                                      )  

                  Appellees.                          )  

                                                      )  



                  Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                  Fourth Judicial District, Fairbanks, Michael A. MacDonald,  

                                                                    

                  Judge.  



                  Appearances: Joseph W. Sheehan, Law Office of Joseph W.  

                                                                          

                  Sheehan,  Fairbanks,  for  Appellant.    Ashley  C.  Brown,  

                  Assistant  Attorney  General,  Anchorage,  and  Michael  C.  

                  Geraghty, Attorney General, Juneau, for Appellees.   



                  Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                                                                                   

                  Bolger, Justices.  



                  STOWERS, Justice.  


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

I.         INTRODUCTION  



                      M&M Constructors submitted a permit application to the Department of  



                                                                                           

Natural Resources (DNR) to mine a mineral deposit for use as construction rock.  DNR  



denied M&M's permit application because it concluded that the mineral deposit was  



                                                                                            1 

                                                                                               "common varieties" of stone  

common variety stone. Under the Common Varieties Act, 



are not subject to "location," meaning they cannot be permitted through the mining law's  



                                                                                               

location process.  M&M appealed to the superior court,  arguing that DNR wrongly  



                                                                                  

denied  its  permit  application  and  also  denied  it  procedural  due  process.    After  the  



                         

superior court affirmed, M&M appealed to this court.  We affirm because M&M seeks  



                                                                                                         

to mine for common variety stone that is well within the ambit of the Common Varieties  



Act, and it received ample due process in the DNR proceeding.  



II.        FACTS AND PROCEEDINGS  



                                                                                                                             

                      M&M, owned  by  James P. McGlinchy, is the leaseholder of a  mineral  



                                                                                     

deposit at Flag Hill, located approximately 45 miles south of Fairbanks.  M&M planned  



                                                                   

to develop the Flag Hill deposit to supply materials for a nearby Alaska Railroad project.  



                                            

M&M submitted a Plan of Operations to DNR in May 2010 requesting a permit to mine  



the land under 30 U.S.C.  22, the General Mining Law of 1872.  



                                                                                                      

                      The 1872 Mining Law provides that "all valuable mineral deposits in lands  



                                                                                                                                           2  

                                                                                                

belonging to the United States . . . shall be free and open to exploration and purchase." 



           1          Act of July 23, 1955, ch. 375, 69 Stat. 367 (1955) (codified as amended at               



30 U.S.C.  601-615 (2012)).  



           2          Act of May 10, 1872, ch. 152, 17 Stat. 91 (1872) (codified as amended at  



30 U.S.C.  22 (2012)).  Alaska applies federal mining law in the absence of a specific  

                                                                                                                         

state  statute.    See  AS  38.05.185(c);  AU  Int'l,  Inc.  v.  State,  Dep't  of  Natural  Res. ,  

971 P.2d 1034, 1039 (Alaska 1999) (recognizing that certain state statutes govern rights  

                                                                                                   

in  mineral  deposits  on  state  lands  and  "[b]ecause  the  relevant  state  statute  clearly  

                                                                                                                     

                                                                                                                      (continued...)  



                                                                    -2-                                                             7028
  


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

       

But in order to be "free and open to exploration and purchase," the mineral or mineral  



                                                                         3  

                                                                            The Common Varieties Act, passed  

deposit in question must be subject to "location."  



                                                                                    

in 1955, limits what minerals are locatable, providing that "[n]o deposit of common  



varieties of sand, stone, gravel, pumice, pumicite, or cinders and no deposit of petrified  



                                                                            4  

wood shall be deemed a valuable mineral deposit."   However, the Common Varieties  



               

Act does  not bar location of either (1) claims "based upon discovery of  some other  

                                                                                                 5 or (2) deposits with  

mineral occurring in or in association with [a common] deposit,"                                        



                                              6  

a "distinct and special value."   M&M refers to these exceptions as the "constituent  



minerals" theory and the "uncommon variety" theory.  



                         

                    In  its  Plan  of  Operations  M&M  asserted  that  the  Flag  Hill  rock  was  



locatable because it either was (1) comprised of valuable minerals due to the interlocking  



                                                                      

structure of its constituent minerals, augite and plagioclase, or (2) an uncommon variety  



                                                                                            

of  stone  with  a  distinct  and  special  value.    M&M  retained  Terry  S.  Maley,  a  noted  



                                                                                                    

geologist formerly employed by the Bureau of Land Management, and Tom Bundtzen,  



          2(...continued)  



addresses the subject of abandonment of state claims, we need not construe our statute  

                                                                                              

in  accordance with the 'usages and interpretations' applicable to the federal mining  

laws").  The parties agree that federal law controls here and we concur.  



          3  

                                                                                           

                    See United States v. Bienick, 14 IBLA 290, 293 (1974) ("Not all materials  

                                                                                                        

which can be removed from the earth and sold at a profit are locatable under the mining  

laws."); BLACK 'S LAW DICTIONARY  1082 (10th ed. 2014) (defining "location" as "[t]he  

act of appropriating a mining claim").  



          4         30 U.S.C.  611.  



          5         Id. (emphasis added).  



          6         Id.  



                                                              -3-                                                        7028
  


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

President  of  Pacific  Rim  Geological  Consulting,  Inc.,  to  help  prepare  supporting  



materials for submission to DNR.  



                             

                   DNR formed an advisory committee to investigate the locatability of the  



                                                                                                          

Flag Hill rock and perform a site inspection.  After careful deliberation the committee  



recommended that DNR deny M&M's application.  It concluded that the constituent  



minerals, augite and plagioclase, were not valuable minerals and, even if they were,  



M&M planned to mine Flag Hill for the host rock for use in construction; it did not plan  



                                                                                    

to use the augite and plagioclase apart from the host rock. The committee also concluded  



that the Flag Hill rock was common variety rock under the Common Varieties Act and  



therefore nonlocatable.  DNR sent a denial letter to M&M in July 2010.  



                                                  

                   M&M appealed and requested a hearing, which the Commissioner of DNR  



                                    

granted.  Over the next two months the parties exchanged contentious emails:  M&M  



                                                                    

argued that the hearing should be longer than originally planned and that DNR should  



be required to present its case first.  The parties also argued over the disclosure of a  



                                                                                                            

"committee communications" file in the administrative record, which was being held by  



                                                                                                  

DNR for privilege review. The hearing officer denied most of these requests but allowed  



an extra hour for questioning witnesses.  And the parties eventually agreed that the  



hearing should go forward as scheduled even without the communications file and that  



M&M could supplement its appeal after the file was produced.  



                                                                                         

                   The one-day hearing was held in January 2011.  Bundtzen testified that the  



                                                                             

Flag Hill rock met the engineering specifications for riprap and railroad ballast.  And he  



                                                                                                               

testified regarding what qualities he thought made the Flag Hill rock unique. These were  



mainly "[s]uperior Los Angeles abrasion loss numbers, good T13 degradations, low  



                                                              

water absorption, very acceptable sodium sulfate soundness tests, and . . . a [high] coarse  



                                                                               

riprap potential."  Maley testified that he believed the Flag Hill rock was "a very strong  



case" for locatability because it had a "unique combination of properties":  he did not  



                                                             -4-                                                       7028
  


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

                                                                                                                   

"think [he had] seen so many properties that could do so much for engineering specs . . .  



in a rock for this purpose."  McGlinchy testified that there would be a market for the  



products in Fairbanks and the surrounding area.  



                                          

                    Witnesses for DNR testified at length regarding Flag Hill's potential yield,  



                                                                     

joint spacing, and core samples.  One witness testified that Flag Hill was not unique in  



being  able  to  meet  the  technical  specifications  for  aggregate,  ballast,  and  riprap;  he  



thought "[a] lot of sites - certainly a lot of sites meet - meet the criteria."  Another  



                                                                             

witness testified that "chemically this plot is similar to a number of intrusions across the  



Interior  of  Alaska,  as  well  as  elsewhere  in  Alaska."    And  the  witness  testified  that  



"[m]ineralogically  .  .  .  this  deposit,  the  quartz  monzodiorite  is  similar  in  mineral  



                     

composition to other rocks of that chemistry, and even the texture . . . the interlocking  



                                                                      

plagioclase and augite are common to rocks of this type."  The witness noted that other  



nearby rock deposits have higher specific gravities and that augite and plagioclase - as  



occurring in the deposit - have no market value even were they to be extracted and  



marketed.  



                                     

                    A    month       after     the    hearing       DNR       produced         the    contents       of    the  



communications  file.    These  were  mainly  emails  between  the  committee  members  



                                                                                  

regarding transportation to Flag Hill, scheduling, and drafts of the committee report.  



                                                                                                      

M&M supplemented its appeal with a brief statement, arguing that the new materials  



were so important that it would have conducted its appeal differently had they been  



              

released before the hearing.  As relevant, M&M argued that DNR knew some of the  



                                                                          

other mineral deposits in the area could not meet the engineering specifications for the  



Alaska Railroad project.  



                    The  hearing  officer  transmitted  his  report  and  recommendation  to  the  



                                                                                                             

Commissioner in June 2011.  He concluded that the Flag Hill rock was not  locatable for  



                                                                                               

its high concentration of augite and plagioclase.  He explained that "M&M was more  



                                                              -5-                                                       7028
  


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

specifically arguing [the Flag Hill rock] should be deemed locatable because of the  



physical properties this mineralogy and texture manifest in the . . . rock," not the minerals  



themselves. (Emphasis in original.) And he noted that several of M&M's witnesses  



                                                                                     

testified that M&M had no intention of extracting or using the augite and plagioclase in  



                                                                                                   

the rock.  The hearing officer also reviewed the conflicting evidence provided by M&M  



                                     

and DNR and found that the favorable joint spacing argued by M&M was not supported  



by  the  evidence.    The  hearing  officer  compared  the  rock  to  other  sites  with  similar  



mineralogy and found that it did not have a unique property that could give it a distinct  



                                                                                    

and special value.  In September 2011 the Commissioner adopted the hearing officer's  



ultimate conclusion that the Flag Hill rock was neither (1) valuable for its constituent  



minerals nor (2) unique, and he denied M&M's appeal.  



                                                   

                   M&M  appealed  the  Commissioner's  final  denial  to  the  superior  court,  



                                                                                                            

arguing that the hearing officer had misapplied the law and denied M&M due process.  



                                                                                                             

The superior court affirmed.  It concluded that because "[t]he application . . . [was] based  



on the value of the host rock, not the value of its constituent minerals," the constituent- 



                                                      

minerals theory did not apply.  The court explained that "[b]ecause [the rock] is to be  



                                                           

used as fill, aggregate, riprap, ballast[,] and base, as a matter of law, the Flag Hill rock  



                             

cannot  fall  within  the  'uncommon  variety'  exception."    The  superior  court  also  



concluded that M&M received due process.  M&M appeals.  



III.      STANDARD OF REVIEW  



                          

                   "In  administrative  appeals,  we  directly  review  the  agency  action  in  

               7  We review questions of fact for substantial evidence, which is "such relevant  

question."                                                                                                



          7        Brown v. Pers. Bd. for City of Kenai                   , 327 P.3d 871, 874 (Alaska 2014)  



(quoting  Grimmett  v.  Univ.  of  Alaska,  303  P.3d   482,  487  (Alaska  2013))  (internal  

quotation marks omitted).  



                                                             -6-                                                      7028
  


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

                                                                                                                           8 

evidence as a reasonable mind might accept as adequate to support a conclusion."   "We  

                                                                                          



need  only  determine  whether  such  evidence  exists,  and  do  not  choose  between  

                  

competing inferences."9  Questions of law that involve agency expertise are reviewed for  

                                        

a reasonable basis.10  Questions of law that do not involve agency expertise are reviewed  

                                                                            



                                                                        11  

under  the  substitution  of  judgment  standard.                             "Questions  of  due  process  present  

constitutional issues that we review de novo."12  



                     M&M  argues  that  "[t]he  Hearing  Officer,  the  Commissioner,  and  the  



superior court . . . misapplied the . . . law," and therefore we should review the entire  



agency decision under the substitution of judgment standard.  We have held that the  



substitution of judgment standard is appropriate "where the case concerns 'statutory  



interpretation  or  other  analysis  of  legal  relationships  about  which  the  courts  have  



                                                                  13  

specialized  knowledge  and  experience.'  "                             In  City  of  Nome  v.  Catholic  Bishop  of  



Northern Alaska we held that because "our decision require[d] interpretation of statutory  

                                                                                                



                                                                                                                    14  

and  case  law,  we  [did]  not  defer  to  the  City's  administrative  expertise."                                       And  in  

                                                                  



          8         Id. (quoting Grimmett, 303 P.3d at 487) (internal quotation marks omitted).         



          9         Handley v. State, Dep't of Revenue , 838 P.2d 1231, 1233 (Alaska 1992).  



          10        May v. State, Commercial Fisheries Entry Comm'n , 175 P.3d 1211, 1215  

                                                              

(Alaska 2007).  



          11        Id.  



          12        Brown , 327 P.3d at 874 (quoting  Grimmett, 303 P.3d at 487) (internal  



quotation marks omitted).  



          13         Tesoro  Alaska  Petrol.  Co.  v.  Kenai  Pipe  Line  Co.,  746  P.2d  896,  903  



(Alaska 1987) (quoting Earth Res. Co. of Alaska v. State, Dep't of Revenue , 665 P.2d  

              

960, 965 (Alaska 1983)).  



          14         707 P.2d 870, 876 (Alaska 1985).  



                                                                -7-                                                          7028
  


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

Thurston v. Guys With Tools, Ltd.                , we held that whether the agency "applied the correct  



                                                                                                                   15  

legal standard" was a "question of law that [did] not involve agency expertise."                                       Thus,  



we  will  review  the  narrow  issue  of  the  correct  application  of  the  law  under  the  

                                                                            



substitution of judgment standard.  But we will review the hearing officer's conclusion  

                                                                                       

that the deposit at issue was not locatable for a reasonable basis.16  



IV.	      DISCUSSION  



                    This appeal presents two issues:  whether the mineral deposit at Flag Hill  

                                                                                        



is "locatable" and whether M&M received procedural due process.  



          A.	       The  Hearing  Officer's  Decision  That  The  Flag  Hill  Rock  Is  Not  

                                                                                  

                    Locatable Has A Reasonable Basis.  



                    1.	      Legal background                         



                                                                                      17  

                    Alaska generally applies federal mining law.                          The General Mining Law  

                                                                                           



of  1872,  as  discussed  above,  provides  that  "all  valuable  mineral  deposits  in  lands  

belonging to the United States . . . shall be free and open to exploration and purchase."18  

                                                                                       



A mineral deposit may be a "valuable mineral deposit" if it meets the "prudent man" test  

and the marketability test.19  The prudent man test asks whether the "discovered deposits  

                                                 



[are] of such a character that 'a person of ordinary prudence would be justified in the  



                                                                   

further expenditure of his labor and means, with a reasonable prospect of success, in  



          15	       217 P.3d 824, 827 (Alaska 2009).  



          16       May ,  175  P.3d  at  1215.    This  question  involves  considerable  agency  



expertise. See, e.g., AS 38.05.300(a) ("The commissioner shall classify for surface use  

                                    

land in areas considered necessary and proper." (emphasis added)).  



          17        See AS 38.05.185(a), (c).  



          18        30 U.S.C.  22 (2012).  



          19        Copar Pumice Co. v. Tidwell, 603 F.3d 780, 785 (10th Cir. 2010); see also  



TERRY S.  MALEY ,  MINERAL LAW 341, 526, 586 (6th ed. 1996).  



                                                             -8-	                                                       7028
  


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

                                           20  

                                                                                                  

developing a valuable mine.' "                The marketability test asks whether the mineral can be  

"extracted, removed[,] and marketed at a profit."21  



                   But "[n]ot all materials which can be removed from the earth and sold at  



                                                                  22  

                                                                      "It is the purpose of mineral laws to  

a profit are locatable under the mineral laws." 



                                                                              

reserve from disposition and to devote to mineral sale and exploitation only such lands  



                                                                                         

as possess mineral deposits of special or peculiar value in trade, commerce, manufacture,  

                             23  Thus, common minerals such as clay, peat, "common or inferior  

                                                                                       

science, or the arts."  



limestone," and "common rock" have not been considered "valuable minerals" under  



                        24  

                                                          

30  U.S.C.    22,          with  one  exception:  before  1955,  materials  that  met  engineering  



                                   

specifications for "road beds, railroads, airport runways, foundations for large buildings,  

bridges[,] and other structures" were sometimes considered valuable minerals.25 



                     After  the  Common  Varieties  Act  of  1955,  "[n]o  deposit  of  common  



varieties of sand, stone, gravel, pumice, pumicite, or cinders and no deposit of petrified  



                                                            

wood [may] be deemed a valuable mineral deposit within the meaning of the mining laws  

                              26  Even if the deposit previously was "subject to location because  

of the United States."                                                        



it met engineering requirements for compaction, hardness, soundness, stability, favorable  



         20        United States v. Coleman, 390 U.S. 599, 602 (1968) (quoting  Castle v.  



Womble, 19 Pub. Lands Dec. 455, 457 (1894)).  



         21        Id. at 600 (internal quotation marks omitted).  



         22        United States v. Bienick, 14 IBLA 290, 293 (1974).  



         23        Id. at 297-98 (Stuebing, member, concurring).  



         24        Id. at 297 (collecting cases).  



         25        Id.  at   298  (citing  United  States  v.  Mattey,  67  Interior  Dec.  63  (1960);  



Stephen E. Day, Jr., 50 Pub. Lands Dec. 489 (1924)).  



         26        30 U.S.C.  611 (2012).  



                                                           -9-                                                     7028
  


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

gradation, non-reactivity and non-hydrophillic qualities in road building and similar  



work,"  after  the  Common  Varieties  Act  "these  materials  were  treated  as  common  



varieties,  and  therefore  [were]  not  locatable,  because  materials  which  meet  these  



                                                                                                     27  

                                                                                                         Thus, even if  

standards are common,  abundant[,] and of widespread occurrence." 



common variety stone was considered locatable before 1955 because it met engineering       



                                                                                                           28  

specifications, after the Common Varieties Act it no longer was locatable.                                      



                   But the Common Varieties Act does not apply to bar location of either  



(1) claims "based upon discovery of some other mineral occurring in or in association  



                                      29	                                                                       30 

with [a common] deposit,"                or (2) deposits with a "distinct and special value."                       M&M  

                                                                



argues that Flag Hill rock is locatable under both theories.  M&M also argues that the  



hearing officer misapplied the law.  



                   2.	       The  "constituent  minerals"  theory  does  not  apply  because  

                             M&M plans to mine Flag Hill for the rock as a totality.  



                   M&M argues that the Flag Hill rock is not subject to the Common Varieties  

                                                                 



Act because the minerals augite and plagioclase are "valuable constituent minerals."  



                                                   

M&M makes this argument even though it admittedly plans to use the host rock as a  



whole.  The hearing officer concluded that the constituent-minerals exception did not  



apply because the rock's value to M&M is in the rock, not the constituent minerals,  



augite and plagioclase.  He also agreed with the committee that augite and plagioclase  



                  

"have little or no market value" even were they to be considered valuable constituent  



minerals.  



          27       Bienick , 14 IBLA at 298 (Stuebing, member, concurring).  



          28       Id. .  



          29       30 U.S.C.  611 (emphasis added).  



          30	      Id.  



                                                            -10-	                                                     7028
  


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

                                                                                          

                    "If the material is located only for the value of a constituent element of the  



sand, gravel, or stone," the Common Varieties Act does not apply, and the material is  



              31  

                                                    

locatable.         Even M&M's expert, Terry S. Maley, agrees with this proposition.  Maley's  



                                                               

treatise explains, "In general, if the rock is valuable for only an individual mineral or  



                                  

element such as gold, silver, feldspar, mica, etc. it is not a common variety question and  



30 U.S.C. 611 does not apply; however, if the entire rock is used and the constituent  



                                                                                                                         32  

elements or minerals are relatively unimportant, then 30 U.S.C. 611 may apply."                                               



                                                                                                       

                    In  United  States  v.  Bunkowski  the  claimants  sought  location  based  on  



                                                              33  

                                                                  The Interior Board of Land Appeals (the  

gypsite to be used as a soil conditioner. 



                                                                                        

Board) held that "[s]ince the material here is valued and used only for its constituent  



                                                                                             

gypsum, it may not be necessary to determine whether the deposit is an uncommon  



                                                     34  

variety of sand, gravel[,] or stone."                    But in  United States v. Beal the Board held that  



rock containing feldspar, an otherwise valuable constituent mineral, constituted common  



                                                                                                                  35 

                                                                                                                      Maley's  

variety stone when the rock was used for ornamental or landscaping purposes. 



treatise  identifies  the  controlling  language  from  Beal  as  stating,  "For  its  use  as  



          31        United States v. Bunkowski, 5 IBLA 102, 113 (1972) (emphasis added)  



(citing  United States v. Pierce, 75 Interior Dec. 270, 279 (1968)); Pierce , 75 Interior  

                                                                  

Dec. at 279 ("[I]n determining whether a particular material falls within the purview of  

                                                                                                                   

the common varieties provision, it is necessary to determine whether the material as a  

                                   

totality has value or whether only a constituent element of the material has value.").  



          32        MALEY , supra note 19, at 592.  



          33  

                                                             

                    5 IBLA at 106-07. Gypsite can be spread on alkali soils in order to improve  

                                                                                              

crop yield by changing the composition of the soil through a chemical reaction. Id.  at  

107, 114-15.  



          34        Id. at 113.  



          35        23 IBLA 378, 395 (1976).  



                                                              -11-                                                        7028
  


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

                                                                                                                

landscaping or building stone, the feldspar on the subject claim . . . is simply ground into  



                                                                                                               36  

                                                                                                                   A classic  

rock form and the feldspar element in the final product is of no significance." 



                                                        

example is granitic rock composed of quartz and other minerals usually found in granite.  



                                                         

If the granite is used for construction purposes, then "[t]here is no doubt that the rock  

                                                                                                                       37  But  

would constitute a 'stone' within the meaning of the common varieties provision." 



if the same rock contained gold and the miner intended to only mine the rock for the  



                                                      

gold, then the deposit would not be a "stone" and would not be subject to the Common  

Varieties Act.38 



                     It is uncontested that M&M plans to mine Flag Hill for the host rock and  



use  it  for  construction  purposes.    M&M's  appellate  brief  says  it  best  when  it  asks,  



                                                                                                     

"[W]hy would anyone want to extract the minerals and destroy the value of the rock?"  



                                  

This telling statement demonstrates that the Flag Hill rock is valuable to M&M for the  



                                                                                

host rock and not for the constituent minerals, augite and plagioclase.  The claim is not  

                                              39  - it is based on the host rock itself, like the example  

                                                                                 

based on "some other mineral" 



used in Pierce and the situation presented in Beal .  The hearing officer's conclusion that  

                                                                            

the constituent-minerals theory does not apply has a reasonable basis.40  



          36        MALEY , supra note 19, at 594; see also Pierce, 75 Interior Dec. at 279-80.   



          37        Pierce , 75 Interior Dec. at 279-80.  



          38        Id. at 280.  



          39        30 U.S.C.  611 (2012).  



          40        M&M argues that the hearing officer wrongly relied upon the fact that  

                                                 

M&M did not plan to remove the augite and plagioclase.  But this argument misses the  

                                                                                       

point of the hearing officer's decision.  The distinction made was not dependant on  

whether the minerals were removed from the host rock; it was a determination of what  

                                                                                       

about the rock was valuable to M&M.  In gypsite  cases the gypsite is not removed  

                                                                                                            (continued...)  



                                                             -12-                                                        7028
  


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

                   M&M also argues that the hearing officer used some terminology that is  



                                                    

more frequently used in the test for uncommon varieties.  Although M&M is correct, we  



believe this was because the hearing officer was also addressing the marketability and  



prudent man tests.  Essentially, the hearing officer was asking whether, if augite and  



                                                                                                        

plagioclase were hypothetically the target of the mining, there would be a market for  



                                                                              

these minerals such that they would pass the prudent man and marketability tests.  And  



            

he was required to use some of this type of language to set the context for the remainder  



                               

of the decision.  His analysis reasonably tackles the main issue - whether the Flag Hill  



                                           

rock is valuable to M&M as a whole or only for some constituent element of its matrix.  



We conclude that the hearing officer correctly applied the law.  



                   3.        The Flag Hill rock is not an uncommon variety rock.  



                               

                   M&M  alternatively  argues  that  the  Flag  Hill  rock  is  not  subject  to  the  



Common  Varieties  Act  because  it  is  an  "uncommon  variety"  due  to  favorable  joint  



spacing, high density, and because it meets engineering specifications.                                    The Common  



Varieties  Act  provides  that  "[n]o  deposit  of  common  varieties  of  sand,  stone,  [or]  

                                                                                41   But "[c]ommon varieties" do  

                                                                                           

gravel . . . shall be deemed a valuable mineral deposit."  

not include deposits that have "some property giving [them] distinct and special value."42  

                                                                             



In order to determine whether an otherwise common deposit has a "distinct and special  

                                                                                          



value," we apply the five tests announced by McClarty v. Secretary of the Interior :  



          40(...continued)  



because removal is not necessary for the gypsite to work as a soil conditioner.   See  

United States v. Bunkowski, 5 IBLA 102, 111-12 (1972).  Here, M&M plans to use the  

                                                                                               

rock for construction - it is seeking to extract and sell the host rock, not the augite and  

                                                                     

plagioclase.  



          41        30 U.S.C.  611 (emphasis added).  



          42       Id.  



                                                            -13-                                                       7028
  


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

                    (1)  there  must  be  a   comparison  of  the  mineral  deposit  in  

                   question  with  other  deposits  of  such  minerals  generally;  

                    (2)  the  mineral  deposit  in  question  must  have  a  unique  

                                             

                   property;  (3)  the  unique  property  must  give  the  deposit  a  

                   distinct and special value; (4) if the special value is for uses  

                                                                    

                   to which ordinary varieties of the mineral are put, the deposit  

                                                            

                   must have some distinct and special value for such use; and  

                                                         

                    (5)  the  distinct and special value must be reflected by the  

                   higher  price  which  the  material  commands  in  the  market  

                            [43] 

                   place.                         



If the mineral deposit does not have a unique physical property under test 2, then the  

rock is a common variety rock subject to the Common Varieties Act.44  



                                                       

                             a.	       McClarty   test  1:  comparison  to  other  types  of  such  

                                       minerals generally  



                                                                             

                   The hearing officer held that "[u]nder McClarty test 1, the other mineral  



deposits that should be compared with [the Flag Hill rock] are other sites with similar  



mineralogy (i.e., diorites, diabase, basalt, gabbro, quartz monzodiorites, etc.) that could  



                                                                         

be quarried for rock that is an aggregate of those such minerals generally ." (Emphasis  



                                                                

in original.) The hearing officer found that when sites with "such minerals generally as  



                 

compared  to  the  [Flag  Hill  rock]"  were  plotted  together,  "they  all  have  relatively  



                                                                                                           

comparable physical properties."  In making his comparison, the hearing officer mainly  



used  sites  M&M  itself  had  proffered  as  a  "reasonable  comparison"  in  its  Plan  of  



Operations.  



          43       408 F.2d 907, 908 (9th Cir. 1969).  



          44       See, e.g., United States v. Smith, 66 IBLA 182, 189 (1982).  



                                                            -14-                                                          7028  


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

                   M&M argues that the hearing officer considered the wrong types of mineral  



                                                                  45  

                                                                      M&M argues that the hearing officer  

deposits and deposits that were too far away.                                               



should have compared the Flag Hill stone to "run of the mill" stone and by not doing so  

                                               



ran  the  risk  of  comparing  it  to  other  uncommon  varieties.    And  M&M  argues  that  



because the proposed use of the rock is construction - a "bulk use" - the hearing  



officer  should  have  limited  the  comparisons  to  those  deposits  within  50  miles  of  



Fairbanks.  



                   In United States v. Stacey & Jackson the administrative law judge noted that  



                                                                          

"a key issue in determining whether the . . . stone is common or uncommon variety is  



whether the [appellants'] deposit should be compared to similar deposits of stone or  



                                                                 46  

                                                                                                                

common variety deposits of stone generally."                         He concluded that the "stone should be  



                                                                                                                           47  

                    

compared to similar deposits of stone rather than common variety deposits generally," 



because (1) its use "falls under the category of building purposes which are typical of  

                                                                      



common variety minerals," (2) "[the stone] graywacke is commonly found in southern  



                                                                                      

Alaska and worldwide," and (3) "the value of [this type of] stone depends on incidental  



factors like the proximity of the deposit to prospective consumers, local needs, and the  



          45       M&M  also  argues  that  the  hearing  officer  should  not  have  considered  



undeveloped deposits.  But even the quote that M&M uses to support its point, from  

                     

United States v. Smith, explicitly states that the comparison may be made with "active  

quarries and exposed outcrops." 66 IBLA at 189 (emphasis added).  Maley's treatise is  

                                                     

in accord.  See MALEY , supra note 19, at 601 (citing Smith, 66 IBLA at 189).  



          46        171 IBLA 170, 177 (2007) (alteration in original) (internal quotation marks  

                                    

omitted).  



          47       Id. (internal quotation marks omitted).  



                                                            -15-                                                      7028
  


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

                                                                                                 48  

                                             

like, rather than on any generally recognized value."                                                On appeal the Board found no  

error in this application.49  



                                                            

                        We agree with the analysis from Stacey & Jackson and conclude that the  



comparison sites the hearing officer chose were reasonable.  Because the Flag Hill rock  



will  be  used  as  construction  rock,  and  there  was  testimony  that  there  were  similar  



                                                                                                                                         

deposits in the area and throughout Alaska, the hearing officer permissibly compared it  

to similar deposits.50  Moreover, the hearing officer compared the Flag Hill rock to other  



                                                                                                 

deposits having the same general mineralogy - he did not specifically compare it to  



                                                                                                                                             

deposits having the same percentages of augite and plagioclase, or to deposits with only  



                                                                                                                

the interlocking texture that M&M argues makes the Flag Hill rock unique.  We hold that  



his choice of comparison sites with similar mineralogy was reasonable.  



                                                                                           

                        M&M also argues that the hearing officer should have considered only  



                                                                                            

deposits within a 50-mile radius of Fairbanks, but this argument is unsupported by case  



law.  Only one case,  United States v. McCormick, supports M&M's specific 50-mile  



        51 

                                                                       

rule.        In that case the comparison was confined to 50 miles from Flagstaff, Arizona, the  



            48          Id.  



            49          Id. at 179.  



            50          See Brubaker v. Morton                     , 500 F.2d 200, 202-03 (9th Cir. 1974) (holding that           



colored roof stone was properly compared to other colored stone);                                                     see also United States  

v. Dunbar Stone Co. , 56 IBLA 61, 64-66 (1981) (comparing to other schist in the area);                        

cf.  Alyeska Pipeline Serv. Co. v. Anderson , 629 P.2d 512, 521 (Alaska 1981) (declining   

to give an instruction about uniqueness in relation to abundance  because it was not  

proven that there were "abundant nearby deposits of similar stone throughout the area").  

                                                                                                             



            51          27 IBLA 65, 69 (1976).  M&M also cites Anderson , 629 P.2d at 521, but  



                                                                                                                      

that  case  mainly  discusses  proximity  and  uniqueness  under  McClarty  test  2,  not  

                                   

comparison under McClarty test 1.  See Anderson,  629 P.2d at 521-22.  



                                                                           -16-                                                                     7028
  


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

"center of the market area served by these several deposits."52  The Board gave no reason  



                                                                                                         

for  its  limitation  of  50  miles.    As  DNR  notes,  McClarty  does  not  address  the  

                                                      53  Cases use such terminology as "throughout the  

geographical range for the comparison. 

area"54 and "throughout the region."55  



                                           

                   In United States v. Heldman a deposit in South Dakota was to be used for  

"decorative, landscaping[,] and precast work"56 - bulk uses like M&M plans for the  



                                                                                                       

Flag Hill rock.  Despite the uses being bulk, the Board discussed similar deposits as far  



                            57  

                                  This  directly  counters  M&M's  argument  regarding  haulage  

away  as  Colorado. 



               

distance.  And in  United States v. Smith the Board noted that "there was a comparison  



                                                                                   58  

                                                                                         The  Board  then  mainly  

of  appellants'  material  with  other  deposits  in  the  area." 



compared the deposit - located on the northeast side of the Kenai Peninsula - to others  

                                    



                                                                                    59  

on the Kenai Peninsula and in the Chugach mountain range.                               Here, the hearing officer  

                    



mainly used the sites that M&M itself proffered.  We conclude that the hearing officer's  

                                                                      



decision not to adopt M&M's 50-mile limit had a reasonable basis.  



         52        McCormick , 27 IBLA at 69.  



         53        See  McClarty v. Sec'y of Interior , 408 F.2d 907, 908-10 (9th Cir. 1969)  



(providing no guidance on the distance to be considered).  



         54        See United States v. Heden, 19 IBLA 326, 339 (1975); see also United  



States v. Smith, 66 IBLA 182, 185 (1982).  



         55        See Pitkin Iron Corp. v. Kempthorne, 554 F. Supp. 2d 1208, 1214 (D. Colo.  

                                                                                          

2008).  



         56        14 IBLA 1, 7 (1973).  



         57        Id. at 6.  



         58        66 IBLA at 185.  



         59        See id. at 185-89.  



                                                          -17-                                                     7028
  


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

                             b.        McClarty test 2:  "unique property"  



                                                             

                    M&M argues that the Flag Hill rock is unique because of "higher specific  



gravity,"  "the  fine  grained  uniform  distribution  of  augite  and  feldspar  grains,"  and  



                                                                 60  

                                                                     The hearing officer concluded that these  

"[f]avorable [j]oint and [f]racture [d]ensity." 



                                   

qualities did not make the rock unique.  He noted that "high percentages of augite and  



                                                                                                             

plagioclase and ophitic texture are not unique in [this type of rock]."  And he found that  



                                                                                      

"there does appear to be a number of other occurrences of this mineralogy identified by  



                                                                                                              

geologic mapping within interior Alaska."  He also found M&M's claims of high yield  



due to favorable joint density unsupported by the evidence.  



                    The hearing officer's findings are supported by substantial evidence.  There  



                                                                

was testimony during the hearing that the alleged "unique" properties of the Flag Hill  



          60        M&M  also  argues  that  the  rock  is  unique  because  of  its  location  and  



because  it  meets  engineering  specifications.    Although  M&M  urges  us  to  consider  

proximity to market in making the rock unique, this is an inappropriate consideration.  

The Board has repeatedly held that " 'extrinsic' factors such as access to highway[s] and  

                                                                                 

proximity  to  market,  although  they  may  give  a  deposit  a  competitive  edge  in  the  

                                                

marketplace, do not qualify as unique properties of the deposit which give the deposit  

a distinct and special value. Rather, the distinct and special value must be inherent in the  

                                                                                                       

unique quality of the deposit itself."  United States v. Henri, 104 IBLA 93, 98-99 (1988)  

                                                                                                        

(quoting  Smith,  66  IBLA  at  188)  (internal  quotation  marks  omitted).  The  Flag  Hill  

                                                                                  

deposit  cannot  be  unique  because  of  its  location  or  because  it  meets  engineering  

specifications; rather, the deposit must be unique because of its particle size or some  

other physical feature.  See United States v. Multiple Use, Inc., 120 IBLA 63, 90-91  

(1991) ("If pumice meets the ASTM standard for use as a lightweight aggregate, that fact  

does no more than establish the ability to market and use it as an aggregate."); United  

                             

States v. Guzman, 18 IBLA 109, 125 (1974) ("[T]he Department has consistently held  

that deposits of sand and gravel suitable for all construction purposes, which may be  

superior to other deposits of sand and gravel found in the area because it is free of  

                                             

deleterious  substances,  and  because  of  hardness,  soundness,  stability,  favorable  

gradation, nonreactivity[,] and nonhydrophilic qualities, but which is used only for the  

                                                                                                       

same purposes as other widely available, but less desirable deposits of sand and gravel  

                            

are, nonetheless, a common variety of sand and gravel.").  



                                                             -18-                                                       7028
  


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

rock  were  common   in   rocks  with  that  type  of  mineralogical  quality  generally,  that  



"chemically this plot is similar to a number of intrusions across the Interior of Alaska,                        



as well as elsewhere in Alaska."  And there was testimony that "[m]ineralogically . . .   



this deposit, the quartz monzodiorite is similar in mineral composition to other rocks of                                                 



that chemistry, and even the texture . . . [is] common to rocks of this type."  One witness                    



noted that other nearby rock deposits had higher specific gravities.  And a witness from   



the Alaska Department of Transportation testified that Flag Hill was not unique in being       



able  to  meet  the  technical  specifications  for  aggregate,  ballast,  and   riprap   and  that  



"certainly a lot of sites meet . . . the criteria."  There was also considerable testimony  



regarding the joint spacing of the rock, with numerous DNR witnesses testifying that  



M&M's forecasts for yields and joint spacing were unreasonable.  



                       Given this evidence, we conclude the hearing officer's decision that the  



                                       

Flag Hill rock did not have a "unique physical quality" under McClarty 2 is reasonable.  

                                                                                                                                      61 and that  

Only one case has found that construction rock has a unique physical property 



                                                    62  

case is considered an outlier.                          In that case,  United States v. McCormick, the unique  



physical property that was alleged was that "[t]he stone ha[d] been crushed by the forces  

                                                                    



of nature in such a way that 80 to 95 percent is of the proper size for various uses in road  



                                                              63  

construction  and  paving  projects."                                The  deposit  was  also  "roughly  stratified  and  

                                                                                            



naturally sorted to an extent that does not exist on any other material sources in the  



            61         See United States v. McCormick, 27 IBLA 65, 69 (1976).  



            62         See MALEY , supra note 19, at 614-16.  



            63         McCormick , 27 IBLA at 68.  



                                                                        -19-                                                                  7028
  


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

area."64  The Board concluded without explanation that "the subject deposit is possessed  

                                                                                                  

of the requisite 'distinct and special properties.' "65  



                   Unique  properties  are  found  more  commonly,  although  still  without  



regularity, in building-stone cases where the physical properties of the rock are such that  

                                                                                                



it can be palletized and shipped with no extra effort.  In  United States v. McClarty the  

          



Board  found  that  a  deposit  of  building  stone  had  unique  properties  because  it  had  

                                                             



"natural fracturing and flat surface cross sectioning" that made almost no additional work  

                                      66   No blasting was required and little sorting was necessary;  

necessary during removal.                                                                     

the rock could just be pried out, "palletized[,] and shipped without further processing."67  



A contractor testified that he had saved 12 days' labor by laying it instead of other  



                                                                68  

varieties because it was so easy to work with.                      In United States v. Pope the Board found  

                                   



that another deposit of building stone was unique for almost the same reasons as in  

                                    



McClarty :  "There's no preparation necessary; it's merely loaded on the truck and taken  



                                                                                      

to the site, the landscape site or the building site, as it were, and used exactly as it comes  

                                                                                      69  In both of these cases the  

                                                                                          

from the quarry, no blasting, no barring loose is necessary." 



stone was so unique that it essentially required no effort to mine.  



          64       Id.  



          65       Id.     (quoting       43     C.F.R.      3711.1(b)         (1975)       (removed         in    2003)).  



43  CFR  3711.1(b),  a  former  Bureau  of  Land  Management  regulation,  excepted  

minerals that were "commercially valuable for use in a manufacturing, industrial, or  

                                                                                                           

processing operation."  



          66        17 IBLA 20, 32-33 (1974).  



          67       Id.  



          68       Id. at 37.  



          69       25 IBLA 199, 204-05, 207 (1976).  



                                                            -20-                                                      7028
  


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

                        The Flag Hill rock meets engineering specifications, and from the testimony  



at trial it appears that the rock would have been very suitable for the Alaska Railroad  



                                                                                                                                      70  

                                                                                                                                            Unlike  

project.         But  merely  being  very  good  rock  does  not  make  a  rock  unique. 



                                                                                                    

McCormick or McClarty , here there was no quality that clearly set the rock apart from  



                                                                                     

other very good rock that also met engineering specifications.  We conclude there is a  



                                                                                                                                      

reasonable basis for the hearing officer's ruling that the Flag Hill rock does not have a  



                                                                                                                           

unique physical property.  Because we agree with the hearing officer on this point, we  



                                                                                            71  

                                                                                                                  

need not address the remaining three McClarty tests.                                            The Flag Hill mineral deposit is  



                                                                                                                                  

common variety stone subject to the Common Varieties Act and therefore not subject to  



location.  



            B.          M&M Received Due Process.  



                                                                                   

                        M&M argues that its due process rights were violated because the hearing  



                                                  

was not long enough, one of its experts was unable to testify on the application of federal  



                                                                                                                                                     72  

                                                                                                                         

mineral law, and it did not receive DNR's communications file until after the hearing. 



            70         See  United  States  v.  Dunbar  Stone  Co.,  56  IBLA  61,  65  (1981)  ("But  



simply  because  this  may  be  uncommonly  good  schist  does  not  necessarily  make  it  

uncommonly good stone." (emphasis removed)).  



            71          If the stone does not have a unique property, then it cannot have a distinct               



and special value that flows from its uniqueness.                                    See United States v. Verdugo & Miller,     

Inc. , 37 IBLA 277, 303 (1978) ("[T]he stone                                    is not unique and therefore does not have                 

a distinct and special value."); see also United States v. Fisher, 115 IBLA 277, 286  

(1990)  (assuming  arguendo  a  unique  quality);  United  States  v.  Thomas,  90  IBLA  

                                                                                                                                       

255, 262 (1986) ("Even if we accept that the particular color of the stone is unique,  

appellees have presented no evidence that by virtue of its color red sandstone would  

command a higher price in the market."); United States v. Smith, 66 IBLA 182, 188-89  

                                                                                                                   

(1982) (finding no unique quality).  



            72  

                                                                                                

                        M&M also argues that it was denied due process because "DNR refus[ed]
  

                                                                                                      

to follow Federal Mining Law, which requires DNR  to  bear the burden to establish
  

                                                                                                                                (continued...)
  



                                                                        -21-                                                                   7028
  


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

                    The threshold question is whether the denial of M&M's application triggers  



due  process  protections.    Due  process  rights  do  "not  automatically  attach  to  every  



governmental action without consideration of what rights are at stake and how they  



                              73  

might  be  affected."               Before  proceeding,  we  must  determine  "whether  there  is  a  



deprivation of an individual interest of sufficient importance to warrant constitutional  



                  74  

                                                                                          

protection."          We conclude that the denial of an application to develop a minerals lease  



triggers due process protections because the situation is sufficiently analogous to the  



                             75  

denial  of  a  permit.             While  the  Department  did  not  terminate  M&M's  underlying  



                      76 

                                               

minerals lease,          M&M argues that the only purpose of the minerals lease was to mine  



          72(...continued)  



prima facie the  invalidity of the claim."  M&M argues that DNR should have been  

                         

required to proceed first at the hearing.  But federal mining law applies only "[u]nless  

                                               

otherwise provided" and "as supplemented by state law."  See AS 38.05.185(c).  State  

                                                                                                    

law   provides   guidance   on   "administrative   appeals   .   .   .   of   a   decision   in   an  

administrative  appeal  to  the  commissioner  of  natural  resources."    AS  44.37.011(a).  

Specifically   for   DNR,   in   hearings   in   cases   where   "facts   must   be   resolved"  

                                                                                                           

11 Alaska Administrative Code 02.050 applies.  These provisions do not mandate that  

                                                                          

DNR proceed first.  



          73 

                                                                                                     

                    Gottstein v. State, Dep't of Natural Res., 223 P.3d 609, 622 (Alaska 2010).  



          74  

                                                        

                     Heitz v. State, Dep't of Health & Soc. Servs., 215 P.3d 302, 305 (Alaska  

2009)  (quoting  Bostic  v.  State,  Dep't  of  Revenue,  Child  Support  Enforcement  Div. ,  

968 P.2d 564, 568 (Alaska 1998)) (internal quotation marks omitted).  



          75        Cf. Estate of Miner v. State, Commercial Fisheries Entry Comm'n, 635 P.2d  



                                                                                                            

827, 832 (Alaska 1981) (property interest in an entry permit for drift-net salmon fishing  

in Bristol Bay).  



          76        See White v. State, Dep't of Natural Res., 984 P.2d 1122, 1126 (Alaska  



                                    

1999) (holding that the cancellation of a mining lease implicates due process); but see  

                                                                                      

State, Dep't of Natural Res. v. Universal Educ. Soc'y, Inc., 583 P.2d 806, 809-10 (Alaska  

                                                                            

1978) (denial of application for a mining lease is not a property interest sufficient to  

                                                                                                            (continued...)  



                                                             -22-                                                        7028
  


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

                                                                                                                   

the stone at issue, so finding the stone is not locatable has the same effect.  We agree  



with M&M.  



                                                                    

                    "[D]ue process requires notice  and an opportunity to be heard prior to  



                                                                                                         77  

                                                                                                             To determine  

governmental deprivation or infringement of valuable property rights." 



                                                                                                           

whether due process was provided, we consider "(1) the private interest that the official  



action  affects;  (2)  the  risk  of  erroneous  deprivation  of  that  interest  through  the  



                          

procedures used and the probable value, if any, of additional or substitute procedural  



safeguards";         and     finally      "(3)     the    government's           interest,     including        fiscal     and  



                                                                                                 78  

                                                                                                     The "crux of due  

administrative burdens, in implementing additional safeguards." 



                                                                                    

process is [the] opportunity to  be heard and the right to  adequately represent  one's  

interests."79  



                                                                                                                              

                    DNR  provided  M&M  with  notice  of  the  hearing  and  responded  to its  



various contentions in the months before the hearing.  The hearing officer added extra  



                                                                                                   

time to examine witnesses when M&M objected, and the parties were able to submit  



                                                                                                                    

written materials to the hearing officer before and after the hearing.  Each side was able  



to present evidence and cross-examine the opposing side's witnesses.  The administrative  



          76(...continued)  



trigger due process protections).  



          77        Gottstein, 223 P.3d at 622.  



          78        Titus v. State, Dep't of Admin., Div. of Motor Vehicles                      , 305 P.3d 1271, 1280  



(Alaska 2013) (quoting Alvarez v. State, Dep't of Admin., Div. of Motor Vehicles, 249  

P.3d 286, 292 (Alaska 2011)) (internal quotation marks omitted).  



          79  

                                                                

                    Alyeska Pipeline Serv. Co. v. State, Dep't of Envtl. Conservation , 145 P.3d  

                                                                                      

561,  570-71  (Alaska  2006)  (quoting Matanuska  Maid,  Inc.  v.  State ,  620  P.2d  182,  

192-93 (Alaska 1980)).  



                                                             -23-                                                        7028
  


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

record alone in the case is more than 2,500 pages and fully documented M&M's factual  



and legal bases for its claim.  



                           

                    We hold that M&M received procedural due process.  A one-day hearing  



                                                                 

was appropriate given the limited number of questions of fact the hearing was intended  



                                             

to resolve.  And M&M never elaborated who else it would have called or how not calling  



                                                           80  

these  specific  witnesses  prejudiced  it.       M&M  was  not  denied  due  process  by  the  



                      

restriction on Maley's testimony; it is undisputed that his prohibited testimony would  



                                                                                                                      

have had no bearing on any of the factual matters in the case:  M&M wanted Maley to  



                                                            81 

                                                                But it is well established that expert witnesses  

testify about what the mining law meant. 



                                                                     82  

are not permitted to testify on what the law is.                         Moreover, M&M's legal position was  



well documented in its hundreds of pages of submissions to DNR.  



          80        See Schmidt v. Beeson Plumbing & Heating, Inc., 869 P.2d 1170, 1180                          



(Alaska 1994) (discussing offer of proof).  



          81        See Barios v. Brooks Range Supply, Inc., 26 P.3d 1082, 1088 (Alaska 2001)  

                                                    

(holding that because the expert "could only offer the court an opinion on how it should  

                                                                                                                      

rule, the superior court correctly found that is not 'an appropriate role for this witness to  

                                                                                                  

serve, regardless of the level of his expertise' "); see also Specht v. Jensen , 853 F.2d 805,  

809-10  (10th  Cir.  1988)  ("These  cases  demonstrate  that  an  expert's  testimony  is  

                                                                                                               

proper . . . if the expert does not attempt to define the legal parameters within which the  

                                                                                                          

jury must exercise its fact-finding function.").  M&M wanted to have its expert testify  

about federal mining law, and the hearing officer restricted Maley's testimony to factual  

           

issues.  



          82        See  Barios,  26  P.3d  at  1088;  see  also  In  re  Air  Disaster  at  Lockerbie  



                                                                  

Scotland on Dec. 21, 1988, 37 F.3d  804, 826-27 (2d Cir. 1994), overruled on other  

grounds by Brink's Ltd. v. South African Airways , 93 F.3d 1022, 1029 (2d Cir. 1996);  

                                                                                   

 United  States  v.  Brodie,  858  F.2d  492,  496-97  (9th  Cir.  1988),  overruled  on  other  

                                                                                                      

grounds by United States v. Morales , 108 F.3d 1031, 1037-38 (9th Cir. 1997); Charles  

                                                                                                 

Reinhart Co. v. Winiemko , 513 N.W.2d 773, 778 (Mich. 1994); Buzz Stew, LLC v. City  

                                                                                                 

of North Las Vegas, 341 P.3d 646, 651 (Nev. 2015); France v. South Equip. Co., 689  

S.E.2d 1, 14 (W. Va. 2010).  



                                                              -24-                                                         7028
  


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

                                                                                                                  

                          M&M finally complains that it did not receive the unprivileged contents of  



DNR's communications file before the hearing.  But M&M expressly chose to proceed  



                                                                                                               

with  the  hearing  before  the  communications  file  was  released,  and  has  failed  to  

adequately demonstrate how the late release of documents prejudiced  it.83  



                                                                                                                                          

                          The  administrative  record  clearly  shows  that  DNR,  and  especially  the  



                                                                         

hearing officer, did an exemplary job in conducting this appeal.  M&M received ample  



due process, clearly evidenced by the thoughtful administrative decision, the voluminous  



administrative record, and M&M's ability to file supplemental briefing.  



V.           CONCLUSION  



                          We AFFIRM the superior court's decision affirming the Commissioner's  



decision denying M&M's Plan of Operations.  We also AFFIRM the superior court's  



conclusion that M&M received due process in the administrative proceedings.  



             83           M&M mainly argues that Flag Hill was the only source in the area to meet                                                      



the Alaska Railroad specifications and that the DNR knew this.  But even were both of         

these allegations to be true, it would not have impacted the case.                                                          The uniqueness of the  

Flag Hill rock had to be demonstrated without regard to location                                                            .   See United States v.  

Henri , 104 IBLA 93, 98-99 (1988).  Even had Flag Hill been the only usable rock, this                                       

would not have given it a "distinct and special value."  



                                                                               -25-                                                                         7028
  

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