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Minto Explorations Ltd v. Pacific and Arctic Railway and

August 12, 2011

MINTO EXPLORATIONS LTD., PLAINTIFF,
v.
PACIFIC AND ARCTIC RAILWAY AND NAVIGATION COMPANY, DEFENDANT.



The opinion of the court was delivered by: John W. Sedwick United States District Judge

ORDER AND OPINION

[Re: Motions at Dockets 21 and 28]

I. MOTIONS PRESENTED

At docket 21, plaintiff Minto Explorations Ltd. ("Minto") moves for summary judgment on Count I of its complaint pursuant to Federal Rule of Civil Procedure 56. At docket 27, defendant Pacific and Arctic Railway and Navigation Company ("PARN") opposes the motion for summary judgment. At docket 28, PARN cross-moves for summary judgment dismissing Count I. At dockets 41 and 42, Minto replies in support of its motion for summary judgment and responds in opposition to PARN's cross-motion for summary judgment. PARN replies in support of its cross-motion at docket 51. Oral argument on the cross-motions was heard on August 4, 2011.

II. BACKGROUND

Minto is a British Columbia corporation with its principal place of business in Yukon Territory, where it operates a copper ore mine. PARN is an Alaska corporation and subsidiary of White Pass and Yukon U.S. Inc. ("White Pass"). PARN is the owner and operator of a dock open to the public in Skagway, Alaska. Adjacent to the dock is a ship loader facility, which is connected to an ore terminal. PARN is the prior owner of the ship loader facility and ore terminal. In July 1990, PARN sold the ship loader facility and ore terminal to Alaska Industrial Development and Export Authority ("AIDEA") through a purchase agreement ("Purchase Agreement").

Section 1.10 of the Purchase Agreement states in pertinent part:

1.10 Use of Dock:

(a) Subject to (b) below, [PARN], in servicing AIDEA, its agents, or other users of the Purchased Assets, will use its best efforts to provide dockage to ore ships, at the Dock, in an expedient fashion and AIDEA, its agents and other users of the Purchased Assets will adhere to the rules and regulations relating to dockage of [PARN] and any regulatory authority having jurisdiction over the Dock.

(b) AIDEA, its agents, or other users of the Purchased Assets will have the right for the Term to use the Dock for ore ships arriving to load outgoing free flowing bulk mine products that will be loaded from the Terminal and for the purposes normally granted to users of the Dock in consideration of payment of the dockage charge and for the purpose of tying and untying ore ships and operating, repairing and maintaining the ship loader and for all related activities ....

(c) (i) Except as provided in (ii) below, for ore ships arriving to load outgoing free flowing bulk mine products that will be loaded from the Terminal, AIDEA will pay or cause to be paid to [PARN] an all inclusive dockage charge at the then current ore ship tariff rates of [PARN] as posted at Skagway, Alaska, or on file with the appropriate government regulatory agency.

(ii) For ore ships arriving to load Curragh's outgoing free flowing bulk mine products, AIDEA will pay or cause to be paid to [PARN] an all inclusive dockage charge of $US 3.00 per foot per each period of 24 hours (with any partial periods considered a full 24 hours), plus (during the period October 1 to May 15 of each year) $US 0.25 per foot per each period of 24 hours (with any partial periods considered a full 24 hours), each escalated on January 1 of each year by the increase since the preceding January 1 in the Consumer Price Index, all items Seattle, Washington, which shall be the only charge payable for use of the Dock for Curragh's outgoing free flowing bulk mine products.

The Purchase Agreement further provides that it "shall be interpreted and construed in accordance with the laws of Alaska and shall be treated in all respects as an Alaskan contract."*fn1

In January 2007, AIDEA and Minto entered into a user agreement for ore storage and loading facilities ("User Agreement"). Section ...


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