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Beluga Mining Co. v. Alaska Dep't. of Natural Resources (2/19/99), 973 P 2d 570
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.
THE SUPREME COURT OF THE STATE OF ALASKA
BELUGA MINING COMPANY, )
) Supreme Court No. S-8256
) Superior Court No.
v. ) 3AN-96-2686 CI
STATE OF ALASKA, DEPARTMENT ) O P I N I O N
OF NATURAL RESOURCES, )
) [No. 5082 - February 19, 1999]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
John Reese, Judge.
Appearances: Peter J. Maassen, Ingaldson
Maassen, P.C., Anchorage, for Appellant.
Nathaniel B. Atwood, Assistant Attorney
General, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
Beluga Mining Company held mining claims located on lands
held in trust by the State for the benefit of the Alaska Mental
Health Lands Trust. A preliminary injunction entered in litigation
over the State's handling of the Mental Health Trust lands
prevented the State from issuing mining leases on trust lands.
Unable to mine its claims, Beluga abandoned them and sued the State
for resulting economic losses. The superior court dismissed the
suit. Because we conclude that there was no taking, contract, or
unjust enrichment, we affirm.
II. FACTS AND PROCEEDINGS
Beluga Mining Company, a corporation created to begin a
gold mining operation, owned mining claims known as the "Beluga-
Threemile Claims"on more than 36,000 acres on the west side of
Cook Inlet. Beluga's predecessors staked the claims before 1983.
Some were located on lands held in trust by the State for the
benefit of the Alaska Mental Health Lands Trust.
Beluga worked on developing its claims. In 1989 the
State granted the first of Beluga's annual placer mining
applications. In 1990 the State issued Beluga a miscellaneous land
use permit. Beluga conducted assay work which it estimated cost
hundreds of thousands of dollars. In 1990 and 1991 Beluga had a
processing plant designed, constructed, and shipped to Alaska. In
February 1991 Beluga created Nuway Corporation to conduct actual
mining activities. By the spring of 1991, Beluga was allegedly
ready to begin operations and only needed to obtain a state mining
Beluga was prevented from obtaining a mining license by
the Mental Health Lands Trust litigation, described in State v.
Weiss (Weiss I), 706 P.2d 681 (Alaska 1985). The litigation arose
out of the State's breach of a trust imposed by the federal
government before Alaska became a state.1 In the 1956 Alaska
Mental Health Enabling Act (AMHEA), Congress granted one million
acres of federal land to the Territory of Alaska to "be
administered by the Territory of Alaska as a public trust"; the
trust income was to "first be applied to meet the necessary
expenses of the mental health program of Alaska."2 Notwithstanding
the land's trust status, "[t]he state managed these lands without
maintaining a special account until 1978,"when the Alaska
legislature enacted legislation that redesignated the AMHEA land as
general grant land, to be managed by the Alaska Department of
A class of mental health program beneficiaries sued the
State in 1982, seeking to overturn the 1978 redesignation
legislation and to have the original AMHEA trust land restored to
trust status.4 In 1985 we held that the State had breached its
duties as trustee; we invalidated the 1978 redesignation
legislation and remanded the case for reconstitution of the trust
"to match as nearly as possible the holdings which comprised the
trust when the 1978 law became effective."5 We also required that
the trust be reimbursed at fair market value at the time of sale
for trust lands that had been "sold."6 We declined to rule on
questions raised by the amicus regarding the title held by
conveyancees and bona fide purchasers of trust lands.7 We later
held that our decision invaliding the redesignation statute did not
strip the title from a third-party bona fide purchaser of those
On remand, the Weiss plaintiffs asserted that parcels
granted to Alaska under the AMHEA, including those encumbered by
third-party interests, should be returned to trust status under the
Weiss I decision. The State contended that those parcels had been
"sold,"and that the appropriate remedy was cash compensation, not
return of those lands to trust status. Consistent with that
position, the State planned to fulfill its perceived obligations to
third-parties by issuing patents, leases, permits, etc., when the
third-parties satisfied all conditions precedent.
In July 1990 the Weiss plaintiffs obtained a preliminary
injunction that temporarily precluded the State from conveying to
third-parties any interests (such as mining leases or production
licenses) in original trust lands, pending resolution of the Weiss
litigation. The preliminary injunction enjoined the State from
issuing any patent(s) or other documents or
taking any further steps which convey or
transfer mental health trust lands or any
interest(s) therein, including without
limitation, any permits to use or occupy
mental health trust lands, or extract
resources from any mental health trust lands,
pending final resolution of this litigation or
earlier order of this court.
The State had opposed the preliminary injunction in part because it
would frustrate the State's ability to satisfy the State's
obligations to third-parties. Superior Court Judge Mary E. Greene,
presiding over the Weiss litigation, responded to the State's
concern, noting that,
The state can be adequately protected. The
preliminary injunction would not undo any of
the state's commitments; rather, it would
delay execution. The effect of the
preliminary injunction would be to temporarily
prevent the state from transferring title to
the mental health trust lands to third-parties
pending resolution of the claims in this
Judge Greene also entered an order addressing third-
party interests adversely affected by the injunction. The order
stated that a third-party claiming an interest in mental health
trust lands could move to modify the July injunction, and that the
court would not act on any such motion until the third-party
certified that it had first sought relief by stipulation through
consultation with the Weiss plaintiffs and the State.
Because the Beluga-Threemile Claims were located on
original trust lands, the preliminary injunction frustrated
Beluga's efforts to mine its claims.
Nuway filed an Annual Placer Mining Application, Land Use
and Water Use Permits, and Mining License for Threemile Claim
No. 264 in early 1991. The Department of Natural Resources (DNR)
determined that the application was consistent with the Alaska
Coastal Management Program, but that Beluga would also need a state
mining lease. Michael Bolstridge, the president of Beluga and
Nuway, sought to convert four of the Beluga-Threemile Claims into
an upland mining lease. According to Beluga, DNR informed
Bolstridge in 1991 that the commissioner could not approve Beluga's
lease application without the approval of James Gottstein, a
private attorney who represented one of the plaintiff classes in
Weiss. Beluga claims on appeal that Gottstein required
commercially unreasonable terms.
Beluga asserts that because it was unable to obtain
Gottstein's approval, Beluga did not obtain a mining lease and
could not mine the Beluga-Threemile Claims. Beluga did not file a
motion to modify the Weiss preliminary injunction, as permitted by
Judge Greene's order addressing third-party participation. Beluga
claims that it tried to remain viable until it could mine its
claims under commercially reasonable terms. It asserts that its
principals exhausted their cash reserves, sold personal assets, and
sold twenty percent of Beluga's stock to pay the annual rental on
the claims. Beluga finally abandoned the claims in November 1994
after failing to make the necessary rental payments.
On December 6, 1994, Judge Greene approved a settlement
in Weiss, dismissed that case, and dissolved the preliminary
Beluga sued the State in 1996. Its amended complaint
asserted contract, quasi-contract, rescission, promissory estoppel,
breach of the covenant of good faith and fair dealing, and takings
claims. Superior Court Judge John Reese granted the State's motion
to dismiss. Beluga sought reconsideration on the ground that the
superior court had not addressed the takings issue. Judge Reese
denied the reconsideration motion.
1. Standard of Review
Both sides asked the superior court to consider materials
outside the complaint when the State moved for dismissal under
Alaska Civil Rules 12(b)(6) and 56. The court granted the motion
without specifying what materials it had considered. As the
parties have requested, we choose here to review the order as a
grant of summary judgment.9 In doing so, we must determine whether
there are any genuine issues of material fact and whether the
moving party is entitled to judgment as a matter of law.10 We are
not bound by the reasoning of the superior court and can affirm a
grant of summary judgment on alternative grounds.11 Moreover, we
should consider any matter appearing in the record, even if not
passed upon by the lower court, in defense of the judgment.12
B. There Was No "Taking."
Beluga argues that it obtained exclusive rights to mine
the Beluga-Threemile Claims by locating them, and that the State
"took"those rights, depriving Beluga of private property without
just compensation in violation of the Alaska Constitution.13
A person obtains the exclusive right to possess and
extract minerals on state land open to claim staking by discovery,
location, and recording.14 But AS 38.05.275 states that, "[m]ining
locations made on state land . . . acquire for the locator mining
rights under AS 38.05.185-38.05.275, subject to existing claims and
to any denial of or restriction in the tentative approval of state
selection or patent of the land to the state." (Emphasis added.)
The mining statutes defined Beluga's rights as the
successor locator of the Beluga-Threemile Claims. Given the
"existing claims"limitation in AS 38.05.275, Beluga's rights could
be clouded by assertion of an "existing claim." The superior court
held that "the Weiss litigation constituted an 'existing claim'
under [AS 38.05.275]. Any rights [Beluga] could have obtained to
its claims would have been subject to the rights of the Mental
Beluga asserts that the Weiss plaintiffs had no "existing
claims"under AS 38.05.275 to the Beluga-Threemile Claims, because
the Weiss litigation first made claims adverse to Beluga's mineral
rights when Judge Greene entered the 1990 injunction, long after
Beluga's claims had been located.
We do not agree. The crux of Beluga's suit is that the
State prevented Beluga from exercising its "right"to mine.
Because no "right"to mine could arise until the State issued
Beluga the necessary mining leases, and because the 1990 Weiss
injunction prevented the State from issuing those leases, the Weiss
plaintiffs had clearly asserted "existing claims"within the
meaning of AS 38.05.275. As the State points out, it did not
matter whether the Weiss plaintiffs asserted claims that were
actually superior to Beluga's; what mattered was that they asserted
that their as-yet-unresolved claims were superior to claims such as
Beluga's and that the injunction preserved the status quo while
those claims were litigated.
Beluga next asserts that the State's acts effected a
"taking"under takings doctrine as applied in Alaska.
Before we turn to Beluga's legal arguments, we note that
it is not apparent how the State "took"Beluga's property. Takings
doctrine is only implicated when the State deprives a person of a
property right. The State deprived Beluga of no property right.
Beluga had property rights in its claims, but it had no right to
mine; its mining "rights"were prospective and contingent, and were
subject to existing claims. These considerations appear to present
an unsurmountable threshold to Beluga's takings claim, but even if
they did not, Beluga's legal arguments are unconvincing.
Beluga first argues that a per se taking occurred. We
have recognized two classes of per se takings: (1) where there is
a physical invasion and (2) where a regulation denies a landowner
all economically feasible use of the property.15 We do not perceive
any per se taking. There was no physical invasion of Beluga's
property, and no "regulation"denied Beluga all economically
feasible use of its property. The injunction simply delayed
Beluga's ability to obtain permission to mine and did not deprive
Beluga of its underlying claims. Beluga's failure to make the
annual rental payments -- not the State's enforcement of the
statutory scheme -- caused the loss of Beluga's claims.
We have also stated that when cases are not within either
per se category, "courts must engage in a case-specific inquiry to
determine whether governmental action effects a taking."16 This
inquiry triggers a four-factor analysis. Courts should consider
"(1) the character of the governmental action; (2) its economic
impact; and (3) its interference with reasonable investment-backed
expectations. The legitimacy of the interest advanced by the
regulation or land-use decision is also relevant to this inquiry."17
Invoking these factors, Beluga next argues that it
suffered a taking because (1) the State's mismanagement of the
Mental Health Lands Trust led to the Weiss injunction; (2) Beluga
suffered a major economic loss; (3) Beluga's investment-backed
expectations were reasonable; and (4) any interest advanced by the
"regulation"(the "Gottstein approval requirement") was not
legitimate because it was the direct result of the State's
misconduct that led to the Weiss litigation.
Beluga's discussion of the takings issue does not explain
how the case-specific factors apply to these circumstances. It
does not clearly explain which State entity (legislature, superior
court, or DNR) or act (enactment of the redesignation legislation,
entry of the injunction, or denial of the lease application)
effected the alleged taking. We are left with a conclusory
assertion that the facts satisfy the factors, but with little
analytical guidance. The following brief discussion explains why
we conclude that Beluga has not demonstrated that a taking occurred
under the four-factor inquiry.
Both the character of the State's acts and the legitimacy
of its interest weigh against finding a taking. The State did not
physically interfere with, damage, or destroy Beluga's property.
The redesignation legislation was ill-fated, but was not intended
to adversely affect Beluga or others like it. The injunction,
although intended to affect claimants such as Beluga, was a
necessary and appropriate act of judicial discretion intended to
maintain the status quo and protect adverse claimants who
potentially possessed unresolved existing claims superior to
Beluga's. And the superior court also entered an order
appropriately allowing third persons, such as Beluga, to seek
The economic impact of the State's actions is difficult
to assess, partly because Beluga's losses appear attributable to
Beluga, not the State. Beluga did not ask the superior court to
lift the injunction or relax the requirements for relief from the
injunction. Also, we put little weight on any economic impact of
the injunction and lease denial, because they delayed but did not
terminate the permitting process. Beluga lost its claims, and the
opportunity to obtain permission to mine, when it failed to pay the
annual rentals, not because DNR or the court appropriated Beluga's
property. Beluga claims that it was unable to pay the rentals
because its resources were exhausted, but that exhaustion is not
attributable to the State.
Although Beluga asserts it invested heavily in its
claims, it has not established a basis for concluding that it had
"reasonable investment-backed expectations." Beluga's claims were
always contingent on State permission to mine and assertion of
adverse existing claims. Absent any demonstration to the contrary,
we conclude that reasonable investors could have recognized that
DNR might be delayed in granting Beluga permission to mine. After
all, Beluga developed its claims despite the pending Weiss
litigation, which began in 1982, despite our 1985 decision that
invalidated the 1978 redesignation legislation and left open the
question of whether the claims of parties like Beluga were superior
to the claims of the Weiss plaintiffs, and despite AS 38.05.275,
which made Beluga's rights subject to existing claims. In our
view, Beluga has not demonstrated a basis for finding that
governmental action had the character of a taking or the kind of
economic impact on investment-backed expectations that would permit
a conclusion that a taking had occurred.
Beluga cites Conoco, Inc. v. United States, 35 Cl. Ct.
309 (1996), to support its takings argument. Conoco and other
companies (lessees) had federal off-shore oil leases which granted
the lessees exclusive rights to drill for, develop, and produce oil
and gas resources, subject to the Outer Continental Shelf Leasing
Act (OCSLA) and other applicable law.18 But before the lessees
could produce oil, they had to submit an environmental impact
statement and exploration and development plans for approval by the
Secretary of the Interior.19 Congress later enacted the Outer Banks
Protection Act, which restricted the Secretary's powers to approve
the lessees' proposed plans.20 The lessees sued for breach of
contract and taking. The Federal Claims Court stated that the new
laws prevented the plaintiffs from taking part in the regulatory
process because the Secretary would not even consider the
exploration plans.21 The court concluded that there was a breach
of contract, and declined to preclude a takings claim based on the
Beluga contends that Conoco is analogous: Just as the
statutory scheme obliged the Secretary to consider Conoco's lease
application under the statutory scheme, the State of Alaska was
obliged to consider Beluga's mining lease application. Beluga
argues that the State breached this obligation by requiring that
Beluga obtain Gottstein's approval; Beluga alleges that this
requirement imposed a new obstacle that did not exist under the
normal statutory framework, and that its inability to surmount this
new obstacle caused the loss of Beluga's claims.
But Conoco is distinguishable. The lease contracts
between the Conoco lessees and the Office of Surface Mining (OSM)
expressed the particular process to which the lessees were subject,
and the deviation from that process constituted the breach of
contract. Whereas the government action in Conoco altered an
existing contract, Beluga had no contract with the State that
altered the potential effect of AS 38.05.275. Any rights Beluga
potentially had to extract minerals were always subject to
challenges under the "existing claims"provision in AS 38.05.275.
Because any delay the Weiss preliminary injunction caused was
consistent with the provisions of law Beluga had to meet to obtain
the right to mine, Conoco is inapposite.
Beluga also relies on Eastern Minerals International,
Inc. v. United States, 36 Cl. Ct. 541, 545 (1996). Eastern, a coal
lessee, had prepared a site for mining and then applied to the OSM
for a mining lease.23 OSM denied the lease on grounds of the
possible adverse effects.24 Eastern appealed the denial, and an
administrative law judge ordered OSM to make specific findings
regarding the probable adverse effects and reconsider the permit.25
OSM delayed making the findings for several years.26 Finally,
Eastern allowed its contractual right to extend its lease to
expire, since it "believed that OSM would never grant the permit"
and it "did not want to incur additional rent liability."27 The
court determined at trial that "the Government had no intention of
ever granting the permit."28 The court held that a compensable
taking had occurred.29
Eastern Minerals is also distinguishable. The State did
not fail to do something, such as issuing findings or permits, that
it was required to do. Rather, the preliminary injunction
prevented the State from doing what Beluga wanted it to do. But
Beluga had no absolute rights to extract minerals from the claims.
Rather, its rights were always subject to existing claims,
challenges, and possible delay under the statutory scheme. The
Weiss injunction and the attendant "Gottstein approval requirement"
were consistent with the provisions of law controlling issuance of
approval to mine. The delay the preliminary injunction caused was
well within the realm of challenges anticipated by the statutory
scheme.30 The injunction included a procedure for deciding whether
the Weiss plaintiffs' claims were superior to Beluga's.
The superior court did not explain why it rejected the
takings claim. Because we conclude that the claim lacked merit,
any possible error in failing to address the claim was harmless.31
3. There Was No Breach of Contract.
Beluga contends that it had a claim for breach of
contract because it was unable to mine the claims:
[The State's] interposition of this extra
hurdle -- Gottstein's approval -- was not a
part of the mining laws as embodied in the
Constitution and AS 38.05.185-275, but was
rather mandated by the Weiss injunction that
had been put in place to help remedy the
State's misfeasance in the handling of the
The interposition of this extra hurdle
significantly altered the statutory
requirements necessary to obtain a mining
lease and in fact rendered impossible Beluga's
exercise of its "exclusive right of possession
and extraction of the minerals." The change
of the rules . . . was a breach of the State's
promises to Beluga and gives rise to contract
damages . . . .
Citing Clawson v. United States, 24 Cl. Ct. 366, 370
(1991), the superior court held that Beluga's yearly payments to
the State under statutory mining law did not create a contract,
that there was no express or implied intent to enter into a
contract, and that there was no consideration or bilateral exchange
to support the finding of a contract. In Clawson, the Federal
Court of Claims considered the way in which mining rights are
acquired by statute and regulation, rather than by bilateral
exchange, and concluded that "there is no contract in the usual
sense of the word."32 The Clawson court stated that "'[i]t would
do violence to traditional contract theory, not to mention the
operation of government, to hold that any statute requiring some
action by a citizen to obtain a benefit or protect a right
constituted an open offer to contract.'"33
We agree. Because the statute gave rise to no contract
between Beluga and the State, and because miscellaneous land use
permits covering the claims were expressly subject to the statutory
scheme, we affirm the superior court's holding that the State could
not be liable on a claim for breach of contract. As the State
points out, the formation of a valid contract requires "an offer
encompassing all essential terms, unequivocal acceptance by the
offeree, consideration, and an intent to be bound."34 No express
or implied promise by the State could have created a contractual
mining right, thereby eliminating the requirement of participation
in the public process established by the Alaska mineral location
Beluga raises two additional arguments that assume a
contract between the State and Beluga: (1) the State breached the
covenant of good faith and fair dealing by failing to use diligent
efforts to have the preliminary injunction lifted to permit Beluga
to exercise its rights on the Beluga-Threemile Claims, and (2) the
State cannot, in defending against a breach of contract claim,
assert that the Weiss injunction excused the State's performance by
making its performance "impracticable." Our analysis of Beluga's
contract claim forecloses these arguments.
D. Estoppel Created No "Irrevocable License."
Beluga argues that it had an "irrevocable license"to
mine, the result of an alleged "executed contract created by
estoppel,"subject only to the express requirements of AS
We have stated that "'[t]he general elements of equitable
estoppel are (1) assertion of a position by conduct or word, (2)
reasonable reliance thereon, and (3) resulting prejudice. A fourth
element, most often explicitly stated in promissory estoppel cases,
is that the estoppel will be enforced only to the extent that
justice so requires.'"35
Invoking these elements, Beluga argues that (1) the
State's "position"was asserted by Alaska's mining laws, which give
a minerals locator who complies with statutory and regulatory
procedures exclusive rights to extract the minerals; (2) Beluga
reasonably relied on its exclusive right to possess and extract the
minerals; (3) Beluga was seriously prejudiced by the interposition
of the non-statutory condition to lease (i.e., the "Gottstein
approval requirement"); and (4) the question of whether injustice
may be avoided by enforcing a promise is a fact question and the
superior court failed to make factual findings regarding this
Equitable estoppel could give Beluga no irrevocable
license to mine because Beluga cannot satisfy the first essential
element. Beluga's rights were never exclusive of existing claims.36
Alaska Statute 38.05.275 states that, "Mining locations made on
state land . . . acquire for the locator mining rights . . .
subject to existing claims." Given the absence of this element,
Beluga's estoppel claim fails, and we need not consider whether, as
the State argues, other elements were also absent.
5. Beluga's Annual Rental Payments Did Not Unjustly Enrich
Beluga argues that the State was unjustly enriched when
it accepted Beluga's rental payments for mineral rights that the
State was "ultimately unable to convey." We first note that Beluga
inaccurately describes the circumstances. Although the Weiss
injunction prevented the State from granting the mining lease when
Beluga first sought it, the State regained authority to grant
mining leases when the injunction was dissolved. Beluga, however,
was unable to wait until the dissolution of the Weiss injunction.
A party seeking to recover for unjust enrichment must
(1) a benefit conferred upon the defendant by
(2) appreciation by the defendant of such
(3) acceptance and retention by the defendant
of such benefit under such circumstances that
it would be inequitable for him to retain it
without paying the value thereof.[ ]37
The superior court rejected Beluga's unjust enrichment
argument, apparently because Beluga's rental payments preserved its
mineral rights. The court noted that AS 38.05.265 and 11 AAC
86.221(e) require locators to preserve their mineral rights by
paying yearly fees upon risk of losing their claims under
We agree. Beluga received something of value in exchange
for its rental payments: preservation of its rights in the mining
claims. The rental payments gave Beluga no additional substantive
rights to the property.
6. Other Issues
Given our resolution of the takings, contract, and unjust
enrichment issues, we need not consider whether the superior court
erred by holding that sovereign immunity barred claims that were
based on any purported misrepresentations made by the State.39
The issues here turn on the nature of Beluga's rights to
possess and extract minerals from these mining claims. It is
undisputed that the State's management of the trust lands resulted
in the Weiss preliminary injunction. Because the delay caused by
the Weiss injunction was within the realm of the statutory scheme
that defined Beluga's rights, the State was not liable for Beluga's
losses resulting from entry of the injunction. AFFIRMED.
1 See State v. Weiss, 706 P.2d 681, 681-84 (Alaska 1985).
2 Id. at 681-82.
3 Id. at 682 (citing ch. 181, § 3(a), SLA 1978).
4 See id. at 682.
5 Id. at 684.
7 See id. at 684 n.4.
8 See James v. McCombs, 936 P.2d 520, 525-26 (Alaska 1997).
See also Alaska Center for the Envir. v. State, 940 P.2d 916
(Alaska 1997) (reviewing history of Weiss litigation); Weiss v.
State (Weiss II), 939 P.2d 380 (Alaska 1997) (affirming superior
court's approval of agreement settling Weiss litigation and
reviewing history of Weiss litigation).
9 See Andrews v. Wade & De Young, Inc., 875 P.2d 89, 90-91
(Alaska 1994) (recognizing our three options in such an event:
remanding for proper consideration, reviewing the decision as a
grant of relief under Rule 12(b)(6) after exclusion of the outside
materials, or reviewing it as a grant of summary judgment).
10 See id. at 91 n.5 (citing Drake v. Hosley, 713 P.2d 1203,
1205 (Alaska 1986)).
11 See Wright v. State, 824 P.2d 718, 720 (Alaska 1992)
(citing Moore v. State, 553 P.2d 8, 21 (Alaska 1976)).
12 See id. (citing State v. Pete, 420 P.2d 338, 341 (Alaska
1966); Ransom v. Haner, 362 P.2d 282, 285 (Alaska 1961)).
13 "Private property shall not be taken or damaged for
public use without just compensation." Alaska Const. art. I, § 18.
14 See Alaska Const. art. VIII, § 11 ("Prior discovery,
location, and filing, as prescribed by law, shall establish a prior
right to these minerals and also a prior right to permits, leases,
and transferable licenses for their extraction."); AS 38.05.195
("Rights to deposits of minerals subject to AS 38.05.185-38.05.275
in or on state land that is open to claim staking may be acquired
by discovery, location and recording as prescribed in AS 38.05.185
-38.05.275. The locator has the exclusive right of possession and
extraction of the minerals subject to AS 38.05.185-38.05.275 lying
within the boundaries of the claim."); Welcome v. Jennings, 780
P.2d 1039, 1042 (Alaska 1989) (noting that "[a] person acquires the
exclusive right to possess and extract minerals on state land by
discovery, location and recording").
15 See Anchorage v. Sandberg, 861 P.2d 554, 557 (Alaska
1993) (citing Lucas v. South Carolina Coastal Council, 505 U.S.
1003, 1014-19 (1992)).
16 Id. (citing Lucas, 505 U.S. at 1019 n.8).
17 Cannone v. Noey, 867 P.2d 797, 800 (Alaska 1994) (quoting
Sandberg, 861 P.2d at 557).
18 See Conoco, Inc. v. United States, 35 Cl. Ct. 309, 317
19 See id.
20 See id. at 318.
21 See id. at 327.
22 See id. at 327, 336.
23 See Eastern Minerals Int'l, Inc. v. United States, 36 Cl.
Ct. 541, 545 (1996).
24 See id.
25 See id.
26 See id. at 550.
27 Id. at 545.
28 Id. at 550.
29 See id. at 548-52.
30 Cf. Aspen Exploration Corp. v. Sheffield, 739 P.2d 150,
162 n.27 (Alaska 1987) (noting in footnote that when plaintiff's
ability to obtain offshore prospecting rights was dependent on
grant of permit and plaintiff's application for permit was by law
subject to possible denial, plaintiff had no vested right in permit
and could not complain of deprivation of any substantive property
right when permit was denied); cf. also Owens v. Beard, 829 F.
Supp. 736, 739 (M.D. Pa. 1993) (stating that if decision-making
process is discretionary, i.e., statutes and regulations establish
guidelines without mandating a particular result, there is no
protectable interest in achieving a particular outcome to support
a due process claim).
31 See Veal v. Newlin, 367 P.2d 155, 157 n.8 (Alaska 1961);
see also Alaska R. Civ. P. 61.
32 Clawson, 24 Cl. Ct. at 370 (citing Bennett v. Kentucky
Dep't of Educ., 470 U.S. 656, 669 (1985)).
33 Id. (quoting Last Chance Mining Co. v. United States, 12
Cl. Ct. 551, 556 (1987), aff'd, 846 F.2d 77 (Fed. Cir. 1988)).
34 See Davis v. Dykman, 938 P.2d 1002, 1006 (Alaska 1997).
35 Mortvedt v. State Dep't of Natural Resources, 858 P.2d
1140, 1142-43 (Alaska 1993) (citations omitted) (quoting
Municipality of Anchorage v. Schneider, 685 P.2d 94, 97 (Alaska
36 See supra Part III.B.
37 State, CSED v. Wetherelt, 931 P.2d 383, 390 n.13 (Alaska
1997) (quoting Darling v. Standard Alaska Prod., 818 P.2d 677, 680
38 11 AAC 86.221(e) provides in relevant part that "[i]f a
locator fails to make a timely rental payment, the claim or
leasehold location will be considered abandoned under AS
Prior to its amendment in 1997, AS 38.05.265 provided in
relevant part that,
Failure to properly record a certificate of
location or a statement of annual labor, file
with the director within the time prescribed a
lease application, pay any required annual
rental, pay any required production royalty,
or keep location boundaries clearly marked as
required by AS 38.05.185 - 38.05.275 and by
regulations adopted under these sections
constitutes abandonment of all rights acquired
under the mining claim, leasehold location,
lease, or site involved, and the claim,
location, lease, or site is subject to
relocation by others.
39 See AS 09.50.250(3).