Judicial Notice of Internet Evidence — Inappropriate Ex Parte Factual Investigation by the Court vs. Sensible Recognition of Indisputable Facts

Jacko v. State, 2015 Alas. LEXIS 75 (Alaska Sup. Ct. July 17, 2015):

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 [*2]  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 [*3]  world's largest discovery of 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

1   See, e.g., Nunamta Aulukestai v. State, Dep't of Natural Res.,     P.3d    , Op. No. 7011 at 2, 26-48, 2015 Alas. LEXIS 59, 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).

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 [*4]  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."

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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 [*15]  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 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.

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.").

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").

For these reasons, we agree with the superior court's conclusion that this controversy was ripe for adjudication.

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