JAMES P. MCGLINCHY d/b/a M& M CONSTRUCTORS, Appellant,
STATE OF ALASKA, DEPARTMENT OF NATURAL RESOURCES, and DANIEL S. SULLIVAN, COMMISSIONER OF NATURAL RESOURCES, Appellees
Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Michael A. MacDonald, Judge. Superior Court No. 4FA-11-02830 CI.
Joseph W. Sheehan, Law Office of Joseph W. Sheehan, Fairbanks, for Appellant.
Ashley C. Brown, Assistant Attorney General, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Appellees.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.
M& M Constructors submitted a permit application to the Department of Natural Resources (DNR) to mine a mineral deposit for use as construction rock. DNR denied M& M's permit application because it concluded that the mineral deposit was common variety stone. Under the Common Varieties Act, " common varieties" of stone are not subject to " location," meaning they cannot be
permitted through the mining law's location process. M& M appealed to the superior court, arguing that DNR wrongly denied its permit application and also denied it procedural due process. After the superior court affirmed, M& M appealed to this court. We affirm because M& M seeks to mine for common variety stone that is well within the ambit of the Common Varieties Act, and it received ample due process in the DNR proceeding.
II. FACTS AND PROCEEDINGS
M& M, owned by James P. McGlinchy, is the leaseholder of a mineral deposit at Flag Hill, located approximately 45 miles south of Fairbanks. M& M planned to develop the Flag Hill deposit to supply materials for a nearby Alaska Railroad project. M& M submitted a Plan of Operations to DNR in May 2010 requesting a permit to mine the land under 30 U.S.C. § 22, the General Mining Law of 1872.
The 1872 Mining Law provides that " all valuable mineral deposits in lands belonging to the United States . . . shall be free and open to exploration and purchase."  But in order to be " free and open to exploration and purchase," the mineral or mineral deposit in question must be subject to " location."  The Common Varieties Act, passed in 1955, limits what minerals are locatable, providing that " [n]o deposit of common varieties of sand, stone, gravel, pumice, pumicite, or cinders and no deposit of petrified wood shall be deemed a valuable mineral deposit."  However, the Common Varieties Act does not bar location of either (1) claims " based upon discovery of some other mineral occurring in or in association with [a common] deposit,"  or (2) deposits with a " distinct and special value."  M& M refers to these exceptions as the " constituent minerals" theory and the " uncommon variety" theory.
In its Plan of Operations M& M asserted that the Flag Hill rock was locatable because it either was (1) comprised of valuable minerals due to the interlocking structure of its constituent minerals, augite and plagioclase, or (2) an uncommon variety of stone with a distinct and special value. M& M retained Terry S. Maley, a noted geologist formerly employed by the Bureau of Land Management, and Tom Bundtzen, President of Pacific Rim Geological Consulting, Inc., to help prepare supporting materials for submission to DNR.
DNR formed an advisory committee to investigate the locatability of the Flag Hill rock and perform a site inspection. After careful deliberation the committee recommended that DNR deny M& M's application. It concluded that the constituent minerals, augite and plagioclase, were not valuable minerals and, even if they were, M& M planned to mine Flag Hill for the host rock for use in construction; it did not plan to use the augite and plagioclase apart from the host rock. The committee also concluded that the Flag Hill rock was common variety rock under the Common Varieties Act and therefore nonlocatable. DNR sent a denial letter to M& M in July 2010.
M& M appealed and requested a hearing, which the Commissioner of DNR granted. Over the next two months the parties exchanged contentious emails: M& M argued that the hearing should be longer than originally planned and that DNR should be required to present its case first. The parties also argued over the disclosure of a " committee
communications" file in the administrative record, which was being held by DNR for privilege review. The hearing officer denied most of these requests but allowed an extra hour for questioning witnesses. And the parties eventually agreed that the hearing should go forward as scheduled even without the communications ...