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., 

Appellants, 

v. 

STATE OF ALASKA, PEBBLE 

LTD. PARTNERSHIP, acting 

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. 

) 

) Supreme Court No. S-15516 

Superior Court Nos. 3DI-11-00053 CI 

and 3AN-11-11833 CI (Consolidated) 

O P I N I O N 

No. 7019 – July 17, 2015 

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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 
 

 

 

 

 

 

 

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 largescale 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 

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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2 
 

 

 

preempted by the Alaska Land Act.3 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 

material fact and . . . the movant is entitled to judgment as a matter of law.”6

 The moving 

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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judgment is warranted.7 We review a grant of summary judgment de novo.8 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.,FEDERAL PRACTICE 

(continued...) 

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

adjudication.12 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 

amounts of marijuana in the home by adults for personal use.”14 We held this claim 

unripe.15 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 

unconstitutional only when squarely faced with the need to do so.”18 

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 samesex 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 

facial challenge to a statute “could be aided by one or more concrete factual scenarios.”24 

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 

determination entirely on . . . facts . . . obtained in an ex parte investigation.”25 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 

ordinance may be preempted or invalidated by state statute.27 But we held that the 

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 

Though Jefferson involved express preemption,29 we applied its holding to 

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

30 The plaintiff 

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 

09.65.070, which authorizes lawsuits against local governments.33 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 

to all kinds of mining.”36 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 

[ ] of [DNR]. 37

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 

the state or federal government.”39 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 

compare the adverse impacts of a project with potential mitigation measures.40 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 

state and federal permits.”41 (Emphasis added.) Although the sponsors correctly note 

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 

Neighborhood Ass’n v. City & Borough of Juneau 50 for these propositions. But 

Owsichek concerned a separate constitutional provision — the Common Use Clause51 — 

and did not address preemption. 52 Liberati is similarly inapposite because we concluded 

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 

exploration, development, and the extraction of minerals.”56 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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DNR to regulate resource extraction.58 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 

exploration, development, and mining of the mineral resources of the state.”59 Because 

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, 

READING 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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