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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jacko v. State (7/17/2015) sp-7019
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
GEORGE G. JACKO and JACKIE G. )
HOBSON SR., ) Supreme Court No. S-15516
)
Appellants, ) Superior Court Nos. 3DI-11-00053 CI
) and 3AN-11-11833 CI (Consolidated)
v. )
) O P I N I O N
STATE OF ALASKA, PEBBLE )
LTD. PARTNERSHIP, acting ) No. 7019 - July 17, 2015
through its General Partner, PEBBLE )
MINES CORP., LAKE & PENINSULA )
BOROUGH, and KATE CONLEY, )
in her official capacity as Clerk of the )
Lake & Peninsula Borough, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Dillingham, John Suddock, Judge.
Appearances: Timothy A. McKeever and Scott Kendall,
Holmes Weddle & Barcott, P.C., Anchorage, for Appellants.
Joanne M. Grace and Margaret Paton Walsh, Assistant
Attorneys General, Anchorage, and Michael C. Geraghty,
Attorney General, Juneau, for Appellee State of Alaska.
Matthew Singer, Holland & Knight LLP, Anchorage, for
Appellee Pebble Limited Partnership. No appearance for
Appellees Lake & Peninsula Borough and Kate Conley.
Victoria Clark, Trustees for Alaska, Anchorage, for Amicus
Curiae Nunamta Aulukestai. Daniel L. Cheyette, Bristol Bay
Native Corporation and Peter Van Tuyn, Bessenyey & Van
----------------------- Page 2-----------------------
Tuyn, LLC, Anchorage, for Amicus Curiae Bristol Bay
Native Corporation.
Before: Winfree, Stowers, and Bolger, Justices. [Fabe, Chief
Justice, and Maassen, Justice, not participating.]
BOLGER, Justice.
I. INTRODUCTION
Lake and Peninsula Borough voters passed an initiative prohibiting large-
scale mining activities that have a "significant adverse impact" on anadromous waters
within the Borough. Pebble Limited Partnership and the State of Alaska pursued
separate suits against the Borough, later consolidated, claiming that the initiative was
preempted by state law. Two of the initiative sponsors intervened to support the
initiative. The superior court granted summary judgment in favor of Pebble and the State
and enjoined the Borough from enforcing the initiative. The initiative sponsors appeal,
arguing that the dispute is unripe and that the superior court's preemption analysis was
erroneous. But because at least the State has articulated a concrete harm stemming from
the initiative's mere enactment, the case is ripe for adjudication. And because the
initiative purports to give the Borough veto power over mining projects on state lands
within its borders, it seriously impedes the implementation of the Alaska Land Act,
which grants the Department of Natural Resources "charge of all matters affecting
exploration, development, and mining" of state resources. We therefore affirm.
II. FACTS AND PROCEEDINGS
The Lake and Peninsula Borough (the Borough) is a home rule borough in
southwest Alaska bordering the world's largest wild sockeye salmon fishery. Within the
Borough, on state-owned land, lies what may be the world's largest discovery of
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undeveloped copper ore. Pebble Limited Partnership (Pebble) holds the mineral rights
to this copper and has spent over a decade exploring the feasibility of mining. However,
because extracting the copper would likely generate significant amounts of waste, there
is concern that the Pebble project may have detrimental environmental effects that could
impair the long-term sustainability of the Borough's salmon industry.1
In March 2011 George Jacko, Jackie Hobson, Sr., and other Borough
residents proposed the "Save Our Salmon" Initiative #2 (the SOS Initiative), a borough
initiative prohibiting the Borough Planning Commission from issuing a permit whenever
a proposed resource extraction activity (a) "could result in excavation, placement of fill,
grading, removal and disturbance of the topsoil of more than 640 acres of land," and (b)
"will have a Significant Adverse Impact on existing anadromous waters." The SOS
Initiative defined "Significant Adverse Impact" as
a use, or an activity associated with the use, which
proximately contributes to a material change or alteration in
the natural or social characteristics of a part of the state's
coastal area and in which:
a) the use, or activity associated with it,
would have a net adverse effect on the quality of the
resources of the coastal area;
1 See, e.g., Nunamta Aulukestai v. State, Dep't of Natural Res. , ___ P.3d ___,
Op. No. 7011 at 2, 26-48, 2015 WL 3452438, at *1, *12-22 (Alaska May 29, 2015)
(holding that certain mineral exploration permits for Pebble project were disposals of
State land requiring prior public notice); Hughes v. Treadwell , 341 P.3d 1121, 1123,
1125 (Alaska 2015) (confirming previous order for election ballot placement of "Bristol
Bay Forever" initiative requiring final legislative authorization for any new large-scale
metallic sulfide mining operations in Bristol Bay Fisheries Reserve watershed); Pebble
Ltd. P'ship ex rel. Pebble Mines Corp. v. Parnell , 215 P.3d 1064, 1078-81 (Alaska 2009)
(rejecting Pebble's argument that proposed clean water initiative would be unlawful
special legislation despite current application only to Pebble project and one other mine).
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b) the use, or activity associated with it,
would limit the range of alternative uses of the
resources of the coastal area; or
c) the use would, of itself, constitute a
tolerable change or alteration of the resources within
the coastal area but which, cumulatively, would have
an adverse effect.
The SOS Initiative also replaced the requirement that an applicant obtain
"[a]ll applicable state and federal permits . . . before a development permit will be issued
by the Borough" with the recommendation that an "applicant should obtain its
development permit from the Borough prior to obtaining applicable state and federal
permits." Additionally, the SOS Initiative authorized the Borough Planning Commission
to indefinitely consider applications for large-scale resource extraction permits.
Before the 2011 election, Pebble sued the Borough for declaratory and
injunctive relief, contending that the SOS Initiative exceeded the Borough's "power to
legislate on matters governing land use permit requirements" and was thus
"unenforceable as a matter of law." Pebble asked the superior court to order the Borough
not to certify the SOS Initiative and to remove it from the ballot. George Jacko and
Jackie Hobson, Sr. (the sponsors) moved to intervene, and the superior court granted
their motion. Pebble, the Borough, and the sponsors moved for summary judgment, but
the court abstained from ruling on the certification issue and deferred its evaluation of
the SOS Initiative's validity until after the election.2
In October 2011 Borough voters approved the SOS Initiative, enacting it
as Borough law. Pebble then amended its complaint, alleging that the enacted initiative
was constitutionally preempted by article VIII of the Alaska Constitution and statutorily
2
Pebble petitioned this court to review the superior court's deferral decision.
We declined to review the case at that time.
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3
preempted by the Alaska Land Act. Pebble further claimed that the SOS Initiative
improperly appropriated state assets, violated equal protection, and was void for
vagueness. Finally, Pebble alleged that the initiative violated the Borough's charter,
claiming that the Borough could not amend its municipal code in the absence of a valid
comprehensive plan.4
The State separately sued the Borough for declaratory and injunctive relief.
Like Pebble, the State alleged that the SOS Initiative was preempted by the Alaska
Constitution and by the Alaska Land Act. The State further claimed that it had
"immunity from the operation of the law enacted by the SOS initiative to the extent that
it purports to prohibit development of State land and State-owned minerals." The
superior court consolidated the State's case with Pebble's previously filed case.
Each of the parties - Pebble, the State, the sponsors, and the Borough -
moved for summary judgment on the merits of Pebble's and the State's claims. The
sponsors and the Borough also argued that the case was not ripe because Pebble had not
yet applied for a Borough permit.
The superior court granted summary judgment in favor of Pebble and the
State. Turning first to ripeness, the court found that there was an "actual controversy"
because the likelihood of permit denial would have a "dissuasive effect on potential
investors" and place a "real burden" on Pebble. Likewise, the court found that the ability
of "local government entities . . . [to] impede natural resource development via
permitting ordinances" would have a "profound[] [e]ffect[]" on "the regulatory climate
in Alaska" and harm the State's royalty and tax revenues, regardless of whether local
entities ultimately chose to grant or deny local development permits.
3 AS 38.05.005-.990.
4 See Lake & Peninsula Borough Charter art. VII, §§ 7.01-.02.
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On the merits, the superior court concluded that the SOS Initiative was
impliedly preempted by state statute. The court noted that the state legislature
"comprehensively conferred authority over all aspects of mining in Alaska to [the
Department of Natural Resources]" (DNR). And the court found that the SOS Initiative
purported to grant the Borough Planning Commission "co-equal permitting authority"
with DNR - authority that was "substantially irreconcilable" with the legislature's
intent that DNR be the sole gatekeeper of mining permits. Accordingly, the court
concluded that the SOS Initiative was impliedly preempted by state statute and enjoined
the Borough from enforcing it.
The sponsors appeal.5
III. STANDARD OF REVIEW
Summary judgment is appropriate where, "view[ing] the facts in the light
most favorable to the non-moving party," "the record presents no genuine issue of
6
The moving
material fact and . . . the movant is entitled to judgment as a matter of law."
party has the initial burden of proving, through admissible evidence, that summary
5 The Borough declined to appeal.
6 Olson v. City of Hooper Bay , 251 P.3d 1024, 1030 (Alaska 2011) (citations
and internal quotation marks omitted).
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7 8
judgment is warranted. We review a grant of summary judgment de novo. We also
review the superior court's ripeness and preemption determinations de novo.9
IV. DISCUSSION
A. This Dispute Is Ripe Because The State Articulates A Concrete Harm
Stemming From The SOS Initiative's Mere Enactment And Because
The Controversy Is Primarily Legal, Not Factual, In Nature.
Alaska Statute 22.10.020(g) grants the superior court jurisdiction to issue
a declaratory judgment "[i]n case of an actual controversy." This "actual controversy"
language "reflects a general limitation on the power of courts to entertain cases . . . [and]
encompasses a number of more specific reasons for not deciding cases, including lack
of standing, mootness, and lack of ripeness."10 The sponsors contend that this case is not
ripe because "Pebble and the State brought [their claims to the superior court] prior to
any application for a permit even having been filed with [the Borough]."
A ripe suit for declaratory judgment will present "a substantial controversy,
between parties having adverse legal interests, of sufficient immediacy and reality."11
7 Mitchell v. Teck Cominco Alaska Inc. , 193 P.3d 751, 760 n.25 (Alaska
2008); Alaska R. Civ. P. 56(c) ("There must . . . be served and filed with each motion
[for summary judgment] a memorandum showing that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law.").
8
Olson, 251 P.3d at 1030 (quoting Beegan v. State, Dep't of Transp. & Pub.
Facilities , 195 P.3d 134, 138 (Alaska 2008)) (internal quotation marks omitted).
9
State v. ACLU of Alaska, 204 P.3d 364, 367 (Alaska 2009) (ripeness); cf.
Catalina Yachts v. Pierce, 105 P.3d 125, 128 (Alaska 2005) (preemption).
10
Brause v. State, Dep't of Health & Soc. Servs. , 21 P.3d 357, 358 (Alaska
2001) (citing Bowers Office Prods., Inc. v. Univ. of Alaska , 755 P.2d 1095, 1096 (Alaska
1988)).
11 Id. at 359 (quoting 13A CHARLES ALAN WRIGHT ET AL .,F EDERAL PRACTICE
(continued...)
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We have noted that there is "no set formula" for determining whether a case is ripe for
12
adjudication. Instead, "[w]e examine the fitness of the issues for judicial decision and
the hardship to the parties of withholding court consideration" in an effort to "balance[]
the need for decision against the risks of decision."13
For example, in State v. ACLU of Alaska a group of citizens claimed that
the state statute prohibiting marijuana possession "conflict[ed] with the privacy clause
of the Alaska Constitution . . . to the extent that it criminalize[d] possession of small
14
amounts of marijuana in the home by adults for personal use." We held this claim
15
unripe. The citizens' need for a decision was "slight" because the penalties for
marijuana possession in the federal Controlled Substances Act16 exceeded state sanctions
and would not be affected by the case, and because the citizens did not suggest that they
themselves were likely to be the subjects of enforcement or that they would alter their
conduct as a result of our decision.17 Moreover, significant decisional risks were present:
concrete facts would have aided us in adjudicating the issue, and "[d]ue respect for the
11 (...continued)
AND PROCEDURE § 3532, at 112 (2d ed. 1984)) (internal quotation marks omitted).
12 Id.
13 ACLU of Alaska , 204 P.3d at 369 (quoting Brause , 21 P.3d at 359) (internal
quotation marks omitted).
14 Id . at 366 (citations omitted).
15 Id. at 373-74.
16 Pub. L. No. 91-513, 84 Stat. 1236 (1970).
17 ACLU of Alaska , 204 P.3d at 369-71, 374.
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legislative branch of government requires that we exercise our duty to declare a statute
18
unconstitutional only when squarely faced with the need to do so."
Similarly, in Brause v. State, Department of Health & Social Services we
held unripe a same-sex couple's claim that Alaska's then-existing prohibition on same-
sex marriage prevented them from enjoying at least 115 separate rights afforded to
married couples.19 We noted that the couple's brief lacked "any assertion that they ha[d]
been or . . . [would likely] be denied rights that [were] available to married partners."20
And we observed that further factual development would aid our ability to decide the
issue in light of the "difficulty and sensitivity of the issues presented."21
Although the sponsors accuse the superior court of basing its ripeness
22 23
analysis on the dissenting opinions in ACLU of Alaska and Brause , we conclude that
the superior court correctly applied the balancing test set forth in those cases. Citing
Brause , the superior court noted that as a general matter, "[t]he risks of decision include
ruling on undeveloped facts[] or on difficult and sensitive issues that could be
advantageously deferred." And the court concluded that Pebble's and the State's "need
for decision" outweighed any countervailing risks of decision. In particular, the court
found that the mere passage of the SOS Initiative "exert[ed] a dissuasive effect on
[Pebble's] potential investors." Likewise, the court found that the ability of "local
18 Id. at 371-74.
19 21 P.3d 357, 360 (Alaska 2001).
20 Id.
21 Id. (quoting 13A CHARLES ALAN WRIGHT ET AL ., FEDERAL PRACTICE AND
PROCEDURE § 3532.1, at 114-15 (2d ed.1984)).
22 204 P.3d at 374-82 (Carpeneti, J., dissenting).
23 21 P.3d at 360-66 (Bryner, J., dissenting).
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government entities statewide [to] impede natural resource development via permitting
ordinances" would have a "profound[] [e]ffect" on "the regulatory climate in Alaska
. . . from the moment such risks are manifest in local laws, and not only at the moment
of permit denial." As a result, the court concluded that the "case [fell] squarely within
the broad swath of Alaska cases found . . . to be ripe for adjudication."
We do not need to evaluate Pebble's claims of harm, because the State's
claimed harm is sufficiently immediate and real to require a facial review of the SOS
Initiative's validity. In its superior court briefing, the State noted that it did "not sue[]
as a potential permittee." Instead, the State contended that the Initiative's mere
enactment "inappropriately infringe[d] on its sovereign power" and therefore "impose[d]
a concrete harm even without application."
In an effort to rebut the State's claimed harm, the sponsors pointed out that
the State had not sued other boroughs regarding their land use regulations. But the
superior court found this lack of previous litigation unpersuasive, and we are similarly
unpersuaded. The State's decision not to sue other boroughs for different ordinances
does not mean it cannot sue them. As the superior court noted, "the [S]tate has scant
incentive to challenge" other boroughs' ordinances "insofar as [they] fill[] in unregulated
interstices of state law" and only "theoretically conflict with DNR authority." The SOS
Initiative is different, the court concluded, because it grants the Borough regulatory
power that was "co-equal" and "concurrent" with the State's authority over natural
resource policy .
On appeal the sponsors' ripeness arguments largely pertain to Pebble's
claims and do not directly address the State's sovereignty argument. Critically, the
sponsors' ripeness discussion does not address the superior court's finding that the
enactment of the SOS Initiative hinders the State's ability to regulate natural resource
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policy. This finding provides adequate and independent support for the court's
conclusion that this controversy is ripe.
The sponsors also point to our suggestion in ACLU of Alaska that even a
24
facial challenge to a statute "could be aided by one or more concrete factual scenarios."
But it is unclear that additional factual scenarios would aid our adjudication of the merits
in this case because the underlying issues are relatively straightforward and purely legal:
does the SOS Initiative grant the Borough the power to exercise coequal permitting
authority with the State regarding the utilization of natural resources, and, if so, is such
authority preempted by state statute or by the Alaska Constitution? The Borough's grant
or denial of a development permit would shed little if any light on these questions.
Finally, the sponsors accuse the superior court of "rest[ing] its ripeness
25
determination entirely on . . . facts . . . obtained in an ex parte investigation." This
allegation pertains to the court's observation that
[i]n September of 2013 the British mining giant Anglo
American withdrew from [Pebble], abandoning its $541
million investment and citing a need to focus on more
promising prospects. Anglo American's departure left
Northern Dynasty Minerals the sole stakeholder in the
project. Northern Dynasty announced that it would seek a
replacement partner.
The sponsors point out that the news of Anglo American's withdrawal from the Pebble
project became public "five days after oral argument" and was therefore "never made a
part of the record." (Emphasis in original.) As a result, the sponsors argue, "[t]he
24 204 P.3d at 373 (citing Sands ex rel. Sands v. Green, 156 P.3d 1130, 1132-
34 (Alaska 2007)).
25 See Alaska Code Jud. Conduct 3(B)(12) ("Without prior notice to the
parties and an opportunity to respond, a judge shall not engage in independent ex parte
investigation of the facts of a case.").
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parties . . . were precluded from any opportunity to present argument on these points."
But though there is some validity to this criticism with regard to Pebble's claims of
harm,26 it has no relevance to the State's claimed harm to its regulatory authority.
For these reasons, we agree with the superior court's conclusion that this
controversy was ripe for adjudication.
B. The SOS Initiative Is Impliedly Preempted By State Law Because The
Borough's Ability To Unilaterally Veto A Project Authorized By DNR
Seriously Impedes The Regulatory Structure Of The Alaska Land Act.
Article X, section 11 of the Alaska Constitution grants home rule boroughs
"all legislative powers not prohibited by law or by charter." In Jefferson v. State we
noted that although "home rule powers are intended to be broadly applied," a municipal
27
But we held that the
ordinance may be preempted or invalidated by state statute.
statutory "prohibition must be either by express terms or by implication such as where
the statute and ordinance are so substantially irreconcilable that one cannot be given its
substantive effect if the other is to be accorded the weight of law."28
29
Though Jefferson involved express preemption, we applied its holding to
30 The plaintiff
an implied conflict of law four years later in Johnson v. City of Fairbanks .
in Johnson challenged a Fairbanks City Charter provision that shielded the city from
liability for negligence unless a plaintiff submitted written notice to the city within 120
26 See ALASKA COMM 'N ON JUDICIAL CONDUCT , ADVISORY OPINION 2014-01
(discussing whether independent Internet research "can be considered 'judicial notice'
and when [such] research become[s] improper factual investigation").
27 527 P.2d 37, 43 (Alaska 1974).
28 Id.
29 Id.
30 583 P.2d 181, 185-87 (Alaska 1978).
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31 32
days of the incident. Because the statute of limitations for a tort action is two years,
we concluded that Fairbanks's notice requirement was impliedly preempted by AS
33
09.65.070, which authorizes lawsuits against local governments. Although there was
no express preemption - notice and filing are technically two separate issues, and the
120-day notice provision did not require plaintiffs to file their complaints within that
period - we concluded that the city's notice requirement "seriously impede[d]
implementation of th[e] statewide legislative policy" that "a plaintiff's commencement
of action is the affirmative step necessary to assure that his assertion of a claim is
timely."34
Under the implied preemption standard articulated in Jefferson and
Johnson , we must determine whether the SOS Initiative is so substantially irreconcilable
with a state statute that the "one cannot be given its substantive effect if the other is to
be accorded the weight of law."35
Article VIII, section 2 of the Alaska Constitution states that "[t]he
legislature shall provide for the utilization, development, and conservation of all natural
resources belonging to the State, including land and waters, for the maximum benefit of
its people." And the legislature, through its passage of the Alaska Land Act, has
delegated to DNR "charge of all matters affecting exploration, development, and mining
31 Id. at 182-83.
32 AS 09.10.070(a).
33 Johnson , 583 P.2d at 187.
34 Id.
35 Id. at 184 (quoting Jefferson v. State , 527 P.2d 37, 43 (Alaska 1974)).
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of the mineral resources of the state, . . . and the administration of the laws with respect
36
to all kinds of mining." The legislature has further clarified that
[DNR] is the lead agency for all matters relating to the
exploration, development, and management of mining,
and . . . shall coordinate all regulatory matters concerning
mineral resource exploration, development, mining, and
associated activities. Before a state agency takes action that
may directly or indirectly affect the exploration,
development, or management of mineral resources, the
agency shall consult with and draw upon the mining expertise
[37]
of [DNR].
But while DNR has broad power to regulate mining throughout the state, an "act of the
state legislature" is necessary before DNR may close any area of state land larger than
640 contiguous acres to mining.38
Here the superior court concluded that the state legislature, "[b]y so
definitively conferring gatekeeper permitting authority upon DNR, . . . impliedly
prohibited local governments from assuming a concurrent role." The court also
concluded that "to the extent . . . the SOS Initiative may be seen as potentially closing
the entire [Borough] watershed to large scale mineral development, it would violate the
clear purpose of AS 38.05.300" - the provision requiring DNR to obtain legislative
approval before completely closing off large tracts of land to resource extraction.
The sponsors argue that these conclusions were erroneous. They contend
that "there is no expressed or implied preemption of [the Borough's] authority to regulate
large-scale resource extraction in the manner the SOS Initiative mandates," because "the
36 AS 27.05.010(a).
37 AS 27.05.010(b).
38 See AS 38.05.300(a).
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SOS Initiative does not confer [the Borough] with 'co-equal permitting authority' with
39
the state or federal government." We disagree.
According to its statement of purpose, the SOS Initiative was designed "to
prevent the development of any large-scale resource extraction activity (including mining
activities) which would destroy or degrade salmon habitat." To accomplish this
objective, the SOS Initiative requires the Borough to deny a development permit to any
large-scale resource extraction activity that would have a significant adverse impact on
existing anadromous waters - without regard to whether such impact can be mitigated.
This stands in stark contrast to other resource development permitting processes, which
40
compare the adverse impacts of a project with potential mitigation measures. As a
result, the Borough's permitting standard is now more stringent than the State's.
The sponsors contest this point, claiming that the SOS Initiative "merely
inserts an additional local layer into the permitting process" in "an effort to minimize the
39 The sponsors make two additional arguments: first, that the SOS Initiative
does not close the entire Borough watershed to large-scale mineral development, and
second, that the superior court's decision was inappropriately paternalistic and offensive
toward Borough officials. But the superior court did not find that the SOS Initiative
closed the entire Borough watershed to large-scale resource extraction, and our analysis
does not depend upon such a finding. And the superior court's statements about political
forces influencing Borough officials are beside the point: the superior court's ruling was
based on a conclusion that Borough officials could exercise veto power over the Pebble
project, not a finding that they necessarily would.
40
One of Pebble's experts stated in an affidavit, "Typically, an environmental
impact assessment involves developing a clear understanding of baseline conditions and
a clear understanding of how those conditions will be changed or affected by a project.
From this follows an evaluation of whether those changes are acceptable or can be
mitigated. It does not appear that the SOS Initiative allows room for such [mitigation]
analysis." Although the sponsors argued that "[p]resumably, appropriate mitigation
measures could qualify an otherwise ineligible project," they did not present any
evidence to support this assertion.
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adverse environmental effects of large-scale mining on the [B]orough and its residents."
But as noted above, the SOS Initiative sets a high standard for Borough development
permits and would allow the Borough to veto projects otherwise authorized by state and
federal regulators. Indeed, the SOS Initiative goes so far as to suggest that an "applicant
should obtain its development permit from the Borough prior to obtaining applicable
41
(Emphasis added.) Although the sponsors correctly note
state and federal permits."
that the "prior to" language is not mandatory,42 this language demonstrates that the SOS
Initiative was intended to elevate the importance of the Borough in the overall permitting
scheme.
For these reasons, the superior court was correct to conclude that the SOS
Initiative, if upheld, would represent a "power shift" requiring DNR - the state agency
tasked by the legislature to regulate resource extraction - "to share power with a local
government that . . . may ignore DNR's rulings. Under such a scheme, DNR [would] no
longer function[] as the sole gatekeeper" in granting and denying mining permits. Such
a power shift is impliedly preempted by AS 27.05.010's provision that DNR "has charge
of all matters affecting exploration, development, and mining of the mineral resources
of the state."43
41 This Borough-first language replaces language which suggested that the
Borough would defer to state and federal permit processes. The repealed language
stated: "All activities shall be conducted in conformance with all state and/or federal
permit stipulations and conditions. All applicable state and federal permits must be
obtained by the applicant before a development permit will be issued by the Borough."
Former Lake & Peninsula Borough Municipal Code 09.07.050(B) (2010) (emphasis
added).
42 The amended provision uses the word "should" instead of "must."
43 Although the superior court concluded that the SOS Initiative is impliedly
(continued...)
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The sponsors argue that this preemption analysis is incorrect. Citing Pebble
44 45
Ltd. Partnership ex rel. Pebble Mines Corp. v. Parnell and Brooks v. Wright , they
contend that "[i]t has been unequivocally established by this Court that the state
legislature does not have exclusive authority over the state's natural resources," and that
"natural resource management is an appropriate subject for a public initiative."
(Emphasis in original.) But these cases, which dealt with statewide ballot initiatives,46
are easily distinguished. Article XII, section 11 of the Alaska Constitution provides that
"[u]nless clearly inapplicable, the law-making powers assigned to the legislature may be
exercised by the people through the initiative, subject to the limitations of Article XI."
And because "natural resource management is not . . . 'clearly inapplicable' to the
initiative process," we have upheld the ability of voters to pass statewide initiatives to
exercise the law-making powers of the state legislature in this area.47 But we have never
held that a borough may exercise the law-making powers of the state legislature through
initiative, nor would such a holding make any sense.
Relatedly, the sponsors claim that we have "repeatedly found that the State
does not have exclusive law-making powers over natural resources merely because of
its management role under Article VIII" and that we have "accepted municipal regulation
43 (...continued)
preempted by state law, the initiative also appears to be expressly preempted by
AS 38.05.135(a), which states: "Except as otherwise provided, valuable mineral deposits
in land belonging to the state shall be open to exploration, development, and the
extraction of minerals."
44 See 215 P.3d 1064, 1077 (Alaska 2009).
45 See 971 P.2d 1025, 1033 (Alaska 1999).
46 See Pebble Ltd. P'ship, 215 P.3d at 1068-69; Brooks , 971 P.2d at 1026.
47 Brooks , 971 P.2d at 1030, 1033.
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of mining as appropriate." (Emphasis omitted.) They cite Owsichek v. State, Guide
48 49
Licensing & Control Board , Liberati v. Bristol Bay Borough , and Thane
50 for these propositions. But
Neighborhood Ass'n v. City & Borough of Juneau
51
Owsichek concerned a separate constitutional provision - the Common Use Clause -
52 Liberati is similarly inapposite because we concluded
and did not address preemption.
that the ordinance at issue there had "no regulatory component" and therefore did not
directly or indirectly conflict with the State's regulatory policies.53 And neither party in
Thane Neighborhood Ass'n raised the issue of state statutory preemption;54 therefore we
did not "accept municipal regulation of mining as appropriate" when such regulation
seriously impedes state policy.
The sponsors next argue that the superior court misconstrued our holding
in Johnson , which they contend was "premised upon the fact that 'the local enactment
[must] yield if it directly or indirectly impede[s] implementation of statutes which [seek]
to further a specific statewide policy .' "55 (Emphasis and first alteration in original.) The
sponsors state that "there is no specific statewide policy that precludes [the Borough]
from implementing and carrying out the SOS Initiative as an ordinance under the
48 763 P.2d 488 (Alaska 1988).
49 584 P.2d 1115 (Alaska 1978).
50 922 P.2d 901 (Alaska 1996).
51 Alaska Const. art. VIII, § 3.
52 See 763 P.2d at 496-98.
53 584 P.2d at 1121-22.
54 See generally 922 P.2d 901.
55 See Johnson v. City of Fairbanks, 583 P.2d 181, 185 (Alaska 1978).
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[Borough] Code." We disagree. The superior court not only accurately described
Johnson 's holding but also quoted Johnson 's discussion of the specific state policy at
issue in that case. More importantly, the SOS Initiative impedes at least two separate,
specific state policies. The state legislature has specified that "[e]xcept as otherwise
provided, valuable mineral deposits in land belonging to the state shall be open to
56
exploration, development, and the extraction of minerals." And the legislature has
specified that DNR "has charge of all matters affecting exploration, development, and
mining of the mineral resources of the state . . . and the administration of the laws with
respect to all kinds of mining."57
Finally, the sponsors argue that the SOS Initiative does not confer the
Borough with "co-equal permitting authority" because the Borough has regulated
resource extraction for decades, and because other boroughs, including the City and
Borough of Juneau, the Fairbanks North Star Borough, and the North Slope Borough,
have enacted land use regulations that affect resource extraction. The sponsors contend
that the SOS Initiative - like these other ordinances - falls under the authority granted
by AS 29.35.180(b), which requires "home rule borough[s] [to] provide for planning,
platting, and land use regulation." But the general provision of authority to home rule
boroughs to regulate land use does not override the specific delegation of authority to
56 AS 38.05.135(a).
57 AS 27.05.010(a). Additionally, article VIII, section 2 of the Alaska
Constitution specifies that the state legislature is responsible for "provid[ing] for the
utilization, development, and conservation of all natural resources belonging to the
State . . . for the maximum benefit of its people." The superior court spent little time
analyzing this provision, however, because the court decided the case on statutory
grounds.
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58
DNR to regulate resource extraction. And the borough regulations that the sponsors
cite are not before us in this case; they would be subject to review if the State chooses
to challenge them.
The legislature has granted DNR "charge of all matters affecting
59
Because
exploration, development, and mining of the mineral resources of the state."
the SOS Initiative allows - and in some cases requires - the Borough to prohibit
mining projects that would otherwise be authorized by DNR, the initiative seriously
impedes the regulatory process set forth by the Alaska Land Act and is therefore
60 61
preempted by that statute. Accordingly, the SOS Initiative cannot be enforced.
58 Cf. Norville v. Carr-Gottstein Foods Co. , 84 P.3d 996, 1004 (Alaska 2004)
("In contracts, as in statutes, where one section deals with a subject in general terms and
another deals with a part of the same subject in a more detailed way, the two should be
harmonized if possible; but if there is a conflict, the specific section will control over the
general." (quoting In re Estate of Hutchinson , 577 P.2d 1074, 1075 (Alaska 1978))
(internal quotation marks omitted)); see also ANTONIN SCALIA & BRYAN A. GARNER ,
R
EADING LAW : THE INTERPRETATION OF LEGAL TEXTS 185 (2012) ("[T]he
[general/specific] canon does apply to successive statutes.").
59 AS 27.05.010(a).
60
Citing Macauley v. Hildebrand , the State also argues that home rule
boroughs are constitutionally preempted from acting in the area of natural resource
management without express authorization from the state legislature. See 491 P.2d 120,
122 (Alaska 1971); see also Alaska Const. art. VIII, § 2 ("The legislature shall provide
for the utilization, development, and conservation of all natural resources belonging to
the State, including land and waters, for the maximum benefit of its people." (emphasis
added)); accord Jefferson v. State, 527 P.2d 37, 44 (1974) ("[When] the state
constitution . . . vest[s] the legislature with pervasive control over [an area of law,] . . .
home rule municipalities [are] precluded from exercising power [in that area] unless, and
to the extent, delegated by the state legislature . . . ." (citing Macauley , 491 P.2d at 120-
22)). Although the State makes a compelling argument that natural resource
management is an area of "pervasive state authority" under the factors articulated in
(continued...)
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V. CONCLUSION
We AFFIRM the judgment of the superior court.
60 (...continued)
Macauley , we do not need to reach this constitutional issue.
61 Pebble also argues that the SOS Initiative is invalid because it exceeds the
borough assembly's power to legislate and because it improperly appropriates state
assets in violation of article XI, section 7 of the Alaska Constitution. Because we agree
with the superior court's conclusion that the initiative is preempted by state statute, we
do not need to reach these issues.
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