Hayes v. A.J. Associates, Inc.

960 P.2d 556, 139 Oil & Gas Rep. 231, 1998 Alas. LEXIS 106, 1998 WL 257065

• Court: Alaska Supreme Court
• Decided: May 22, 1998
• Docket: S-6736, S-7185/7215
• Status: Published

Opinions

EASTAUGH, Justice.

I. INTRODUCTION

These consolidated appeals concern eight mining claims filed by Howard Hayes and his son, Michael, on Alaska-Juneau Gold Mine tailings.¹ In S-6736 Hayes appeals from a superior court order ejecting him from Taku Nos. 1 and 2 for staking those claims without obtaining the consent of the landowners or posting a surety bond. In S-7185 Hayes appeals from a partial summary judgment dismissing most of his tort claims against Jim Jansen and others relating to the eight mining claims. In S-7215 the landowners appeal from an order denying them summary judgment on another of Hayes’s tort claims. We affirm in part, reverse in part, and re-, mand for further proceedings.

II. FACTS AND PROCEEDINGS

These cases concern rights to part of Alaska Tidelands Survey No. 201 (ATS 201), near downtown Juneau. The Alaska-Juneau Gold Mine operated near Gastineau Channel from 1914 until 1944. State v. A.J. Indus., Inc., 397 P.2d 280, 281 (Alaska 1964). It daily generated as much as 13,000 tons of crushed rock and mill tailings, which were dumped onto adjacent tidelands and then onto submerged lands under the channel. Id. Dumping eventually resulted in “considerable acreage of real property ... well above high water,” including the property in dispute in these cases. Id. Various predecessors to the present landowners used the property from 1937 onwards.² Three previous opinions of this court addressed disputes relating to ownership of and mineral rights to this property. Hayes v. A.J. Assocs., Inc., 846 P.2d 131 (Alaska 1993); Hayes v. Alaska Juneau Forest Indus., Inc., 748 P.2d 332 (Alaska 1988); State v. A.J. Indus., Inc., 397 P.2d 280 (Alaska 1964).

In State v. AJ. Industries, the court held that the landowners were entitled to a preference right to obtain title to nearly 100 acres of property created by the disposal of rock and mill tailings. 397 P.2d at 281, 287. The State subsequently issued a patent transferring the property to the landowners. As required by AS 38.05.125(a), the patent expressly reserved mineral rights to the State.³

In 1981 the landowners executed a mining lease permitting Hayes to extract merchantable ore, including gold, from the property.⁴ The lease expired December 31,1981; Hayes nonetheless remained on the property and continued to mine. When negotiations for a new lease failed, Hayes staked mining claims Taku Nos. 1 and 2 on the property in 1982.⁵ A.J. Assocs., 846 P.2d at 132; Alaska Juneau Forest Indus., 748 P.2d at 334. The landowners filed an ejectment action as to those two claims, and Hayes counterclaimed, asserting he had' acquired mineral rights from the State by staking valid claims. 748 P.2d at 334. The superior court granted summary judgment to the landowners, ruling that the tailings had not passed to the State under the Alaska Statehood Act, Public Law No. 85-508, 72 Stat. 339 (1958) (see note preeed-ing 48 U.S.C. § 21 (1976)). Id. This court reversed in 1988, concluding that the tailings were real estate that had consequently passed to the State under the Statehood Act. Id. at 336. Because the minerals in the tailings were reserved to the State in the patent transferring the property to the landowners, they were subject to valid mining claims. The ease was remanded for further proceedings. In 1989, the Alaska Department of Natural Resources (DNR) granted Hayes a production license authorizing “the production of minerals for sale, subject to other applicable statutes and' regulations.”

Upon remand, the superior court again granted summary judgment to the landowners, concluding that because Hayes had not made his mineral locations in good faith, the locations were void. A.J. Assocs., 846 P.2d at 131. This court reversed and again remanded, holding that Hayes did riot owe the landowners a duty of good faith location. Id. at 134-35.

Following this remand, the case was reassigned to Superior Court Judge Thomas M. Jahnke, who again granted summary judgment to the landowners. It ruled that Hayes’s failure to obtain the landowners’ consent or post a surety bond made the locations for Taku Nos. 1 and 2 invalid under AS 38.05.130, rendering Hayes a trespasser who was subject to ejectment. The trial court denied Hayes’s motions for reconsideration and Rule 60(b) relief and granted attorney’s fees to the landowners. Hayes appeals in S-6736 from those rulings.

In 1993 Hayes filed a tort suit against the landowners, ultimately asserting seven counts of tortious conduct by the landowners. When the landowners moved for summary judgment, the superior court found that genuine fact disputes existed with regard to Hayes’s claims that the landowners had destroyed Hayes’s monuments, stakes, markers, and other structures, but granted summary judgment to the landowners on Hayes’s remaining claims. The superior court declined to dispose of two of Hayes’s other claims via summary judgment: (1) the “claimed right to enter to stake claims” on the remaining six claims; and (2) the “claim that A.J. or its agents destroyed Hayes’s access road to ATS 201.” The court denied all motions for reconsideration and entered a Rule 54(b) final judgment. Hayes and the landowners appeal from these rulings in S-7185 and S-7215.

III. DISCUSSION

A. Hayes v. A.J. Associates: Effect of Hayes’s Failure to Obtain Consent or Post a Bond before Staking

1. Acquisition of State-held mineral interests

The landowners acquired ATS 201 subject to the State’s: reserved mineral rights and its right to explore for and extract those minerals. AS 38.05.125(a);⁶ Hayes v. Alaska Juneau Forest Indus., 748 P.2d at 337 (holding that AS 38.05.125(a) reserved to the State the mineral rights in ATS 201).

The superior court, in a lengthy and thoughtful memorandum decision, held that AS 38.05.130 and 11 AAC 96.140(10) obliged Hayes to either obtain the landowners’ consent or post a surety bond before entering in 1982 to stake Taku Nos. 1 and 2. The court concluded that Hayes’s failure to do so invalidated those two claims, requiring ejectment.⁷ It implicitly reasoned that (1) staking is “exploration,” an activity reserved by subsection .125(a), and (2) section .130 applies to the. exercise of any right reserved under subsection .125(a).⁸

Hayes attacks these conclusions on various grounds.⁹ Most fundamentally, he asserts that section .130 did not apply to his 1982 entry to stake. He reasons that section .130 only imposes obligations on the exercise of rights reserved pursuant to AS 38.05.125(a), and that the right to enter to stake a mineral location is not a right reserved by subsection .125(a).¹⁰

We begin our analysis by recognizing that statutes and regulations govern how others may acquire the State’s mineral rights. Discovery and appropriation are the basis for acquiring such rights. Alaska Const, art. VIII, § ll.¹¹ Alaska Statute 38.05.185(a) provides that the acquisition of rights in deposits on State land of minerals subject to location is governed by AS 38.05.185 — 38.05.275.¹² Gold is a mineral subject to location. 1 American Law of Mining § 8.01[3], at 8-4 (The Rocky Mountain Mineral Law Foundation ed., 2d ed.1994). Subsection .185(a) also provides that State land “may not be closed to mining or mineral location” unless the DNR commissioner finds that mining would be incompatible with significant surface uses and unless AS 38.05.300 (which authorizes the commissioner to close State lands to “mining, mineral entry or location, mineral prospecting, or mineral leasing” under specified conditions) is also satisfied. Alaska Statute 38.05.185(a) thus keeps State land open to mineral location unless the commissioner specifically closes it.

Under AS 38.05.195, “[rjights to deposits of minerals subject to AS 38.05.185-38.05.275 in or on state land that is open to claim staking may tie acquired by discovery, location and recording.”¹³ Likewise, leasehold'preferences in State mineral lands available only for leasing may be acquired by “discovery, location and recording....” AS 38.05.205(a). “State land” is broadly defined to mean “all land, including shore, tide and submerged land or resources belonging to ” the State. AS 38.05.965(19) (emphasis added). “State land” thus includes the State’s reserved mineral estate.¹⁴ See also 11 Alaska Administrative Code (AAC) 86.135 (1996). The mineral estate in ATS 201 was consequently “state land.”¹⁵

Justice Rabinowitz’s dissent relies on State v. Weidner, 684 P.2d 103 (Alaska 1984), but that case did not concern the .effect, of the subsection .125(a) reservation, or any question whether the State’s reserved mineral interest remained state land.

Our interpretation here is supported by a 1993 Attorney’s General opinion: “Because the term ‘state lands’ is defined to include all lands and interests in lands belonging to or acquired by the state, AS 38.05.965(19), all state-owned severed mineral interests, including reserved mineral interests, are subject to location. 11 AAC 86.135.” 1993 Informal Op. Att’y Gen. 563, 564. See also Moore v. State, 553 P.2d 8, 25 (Alaska 1976), where we stated:

We note that sections found throughout the Alaska Land Act utilized the word “land” in such a way that it could only be interpreted as encompassing resources within the scope of its meaning. Admittedly, in certain provisions of the act the word “land” is used in a manner inconsistent with the statutory definition of the term. -However, instances of such inconsistencies are few in number, and bear no special contextual significance to AS 38.05.305. Under the definition section of the act, statutory definitions are to apply “unless the context otherwise requires.” We find nothing about the context of AS 38.05.305 which would imply that the statutory definition of the word “land” should be disregarded.

(Footnotes omitted.)

Justice Rabinowitz’s dissent argues that section .185 was not intended tb allow staking of claims on lands conveyed by the State. The State’s amicus brief states what we believe to be the proper reading of the mining code: “When the state conveys a surface estate to another party, the state is required to reserve both the minerals and the right to explore and develop them. Mineral interests on these ‘split estate’ lands are subject to the location of state mining claims in the same manner as on lands oumed entirely by the state.” (Emphasis added.) See also 3 American Law of Mining § 71.03[5], at 43 (2d ed. 1984 & 1997 Supp.).

Justice Rabinowitz is concerned that location activities will interfere with quiet enjoyment of surface rights. Dissent at 53-55.' Owners of surface estates must anticipate that the State’s reserved rights might someday be exercised. The dissent’s concerns should not alter the result required by the mining code. They should instead be addressed either by a finding by the commissioner that mining would be incompatible with surface use, AS 38.05.185(a), or by a claim for appropriate remedies for undue interference with;those rights.

The dissent also relies upon the history of the 1981 amendment of AS 38.05.185. As we read that history, however, the legislature in 1981 simply limited the commissioner’s discretion in determining what mineral lands would be exclusively subject to entry under lease. The dissent argues that the amendment applied only to lands in which the State retained the surface estate. If so, the amendment is irrelevant, here because it did not limit the commissioner’s discretion in dealing with land conveyed by the State subject- to the subsection .125(a) reservation. The amendment did not change the definition of “state land.”

2. State’s reservation of its mineral rights¹⁶

Whereas AS 38.05.185-38.05.275 describe how others may acquire the State’s reserved mineral rights, AS 38.05.125(a) describes the scope of those reserved rights. Subsection .125(a) reserves to the State minerals and other resources on land sold or granted by the State. It also reserves “the right to explore the same” for those minerals and things, and “expressly saves and reserves ... the right to enter ... upon said land ... for the purpose of opening, developing, drilling and working mines or wells.... ” AS 38.05.125(a).

Alaska Statute 38.05.130 concerns exercise of rights “under the reservation as set out in AS 38.05.125....” Whether section .130 covers the physical act of staking, and whether Hayes’s • unconsented, unbonded entry to stake in 1982 violated AS 38.05.130, depends on whether subsection .125(a) covers staking. Subsection .125(a) does not mention either “staking” or “locating,”' but it reserves the right to “explore.”

The term “explore” is not defined in Alaska Statutes titles 27 or 38 or the State’s mining regulations. In applying subsection .125(a), we read “explore” to have its common meaning: “to seek for or after ... to search through or into ... to examine minutely ... to penetrate into or range over for purposes of geographical discovery ... to make or conduct a systematic search_” Webster’s Third New International Dictionary (unabridged) 802 (1969). Black’s 'defines “exploration” in context of mining law as “[t]he examination and investigation of land supposed to contain valuable minerals, by drilling, boring, sinking shafts, driving tunnels, and other means, for the purpose of discovering the presence of ore and its extent.” Black’s Law Dictionary 579 (6th ed.1990). These definitions are consistent with how “exploration” is used in Alaska Statutes titles 27 and 38. Cf AS 27.05.010 (seemingly distinguishing among “exploration, development and mining”). The American Law of Mining states:

Mineral exploration is the orderly search for previously undiscovered or unrecognized ore deposits_ Exploration typically involves a succession of steps, involving the application of both inductive and deductive concepts, in which the explora-tionist seeks first to locate and then to recognize or “prove up” a discovery of a minable deposit by utilizing known or theorized deposit models as a guide to ore deposits.

1 American Law of Mining § 1.03[1], at 1-41. We • conclude that “explore” does not encompass in its common or mining usage the limited and discrete physical act of staking (placing corner monuments with an appropriate notice) carried out by Hayes in 1982.

Staking satisfies one of the requirements for acquiring a mineral claim or leasehold preference on public land. See supra, note 13. It is not surprising that subsection .125(a) says nothing of staking, given that its focus is on reserving the State’s rights, not on how others can acquire those rights from the State.

The focus of subsection .125(a) is also consistent with its origin. Subsection .125(a) seems intended to fulfill the reservation requirement, contained in the Alaska Statehood Act, Act of July 7, 1958, Public Law No. 85-508, 72 Stat. 339 § 6(i), as amended 48 U.S.C. § 21 (1988), which was a condition 'of the federal transfer of vast amounts of land to Alaska upon statehood. See Trustees for Alaska v. State, 736 P.2d 324, 326 (Alaska 1987). Subsection 6(i) of the Statehood Act required the State to reserve its mineral rights in lands known to be mineral in character. Id. at 341. In requiring that reservation, Congress was concerned with ensuring that the State reserved the rights that would make it economically self-sufficient, see id. at 335, and not, with how persons might enter onto those lands in seeking to acquire rights from the State through the process of claim or leasehold location.

To read subsection .125(a) in this fashion does not .impair the State’s .rights, because the State reserves the right to explore and does not have to stake to obtain mineral rights it already possesses. Nor does this reading significantly affect prospecting practices. It will be rare that claim location will ever be based on “immaculate” staking.¹⁷

From a practical standpoint, this interpretation of subsection .125(a) does not lessen the protection AS 38.05.130 gives the owners of lands, such as ATS 201, that are subject to the subsection .125(a) reservation. Section .130 is concerned exclusively with compensating the landowner for damages resulting from entries during exercise of rights reserved under subsection .125(a). Exploration, including discovery of locatable minerals, is the prospecting activity that is predictably most damaging to the surface estate. Staking, as such, requires acts (placing corner markings and posting notice) that are unlikely to damage the surface estate. Also, often any successful exploration which is part of the location process will be relatively contemporaneous with staking, and the mandatory agreement or bond covering exploration will encompass all .aspects of the prospector’s activities, including staking. That, however, is not the situation here, where the landowners contend that the limited act of staking alone, without more, violates section .130, and do not assert that Hayes did anything other than enter for the limited purpose of staking.¹⁸

Absent a claim the staking entry itself caused financial harm to the landowners’ estate, the type of protection contemplated by section .130 (financiál indemnification) is inapplicable. As long as the landowner is financially protected against damage, the would-be explorer can enter without offending section .130.'

Section .130 does not purport to protect a simple right of quiet enjoyment, but addresses only harm that can be remedied, by compensation.¹⁹ A purchaser of lands sold subject to the subsection .125(a) reservation must anticipate that the reserved rights might someday be .exercised. Section .130 does not allow the landowner to altogether close the land to entry by persons seeking to exercise those rights, much less prevent a prospective locator from entering the land to stake claims. Even if the landowner refuses to reach agreement, section .130 effectively allows the would-be locator to “force” entry by posting bond satisfactory to the Director of the Division of Lands. Section .130 does not purport to address staking that does not cause physical damage to the land, nor does it address harmless nonintrusive activities, such as airborne aeromagnetic surveys.

The two members of the court who would hold that section .130 does not apply to Hayes’s 1982 staking activity do not conclude that such landowners are without remedies. If DNR finds that mining would be incompatible with significant surface uses (perhaps where the surface owner resides on a potential location site), DNR may close the land to mineral location under AS. 38.05.185(a) and AS 38.05.300. Such closure would prevent any entry for purpose of mineral location. To the extent staking actually causes damage, the landowner has access to common law remedies. The Alaska Constitution confirms that the State’s reservation of access to resources “shall not unnecessarily impair the owner’s use, prevent the control of trespass, or preclude compensation for damages.” Alaska Const, art. VIII, § 9. There is no absolute privilege to enter to prospect on such lands. A person tortiously causing damage must make the landowner whole. The landowner also has some statutory protection. A trespasser who intentionally cuts trees without consent may be liable for treble damages. AS 09.45.730. Likewise, AS 09.45.735 permits treble damages against one who intentionally trespasses “to gather geo-technical data or take mineral resources .²⁰

In its analysis the superior court compared analogous federal statutes dealing with conveyance of public lands. In our view this analysis is not helpful, largely because we consider Alaska’s statutory scheme sufficiently clear that little is gained by referring to dissimilar federal statutes. Thus, comparing the Stock-Raising Homestead Act, 43 U.S.C. § 299 (1988), with the Agricultural Entry Act of 1914, 30 U.S.C. § 121-22 (1988), provides little guidance as to the purpose and scope of AS 38.05.125(a) and .130, or their relationship with AS 38.05.185(a). Also, both federal acts refer to “prospecting,” a term not used in subsection .125(a) or section .130. The federal statutes are also more explicit than AS 38.05.125(a). Comparing the two federal acts does not help determine whether AS 38.05.130 applies to staking unaccompanied by exploration or discovery. Further, as the State’s' amicus brief notes, few eases interpreting the federal surface damage statutes have dealt with similar facts.

The superior court also held that Hayes’s failure to satisfy 11 AAC 96140(10) invalidated his asserted leaseholds. That regulation requires ’that a locator make good-faith attempts to agree with the surface owner or post bond before conducting “mineral exploratory activity” on land in which the State has reserved- a mineral interest.²¹ The act of staking, without more, is not “mineral exploratory activity.” A locator who stakes without consent, therefore, does not necessarily violate this regulation. There is no claim Hayes conducted unauthorized exploratory activities before he staked in 1982. Therefore, two members of the court are of the opinion that 11 AAC 96.140(10) does not apply.

The landowners argue that Hayes’s entry also violated AS 09.45.060, which prohibits a person from entering upon land “except in cases where entry is given by law.”²² If Hayes’s 1982 staking entry was not pursuant to rights reserved under AS 38.05.125(a), under what authority did Hayes enter ATS 201? In our view that authority is found in AS 38.05.185, which maintains the availability of “state lands,” and thus ATS 201, to mineral location unless withdrawn by the commissioner.

This is consistent with constitutional and legislative. expressions of a policy that encourages development of mineral resources. Alaska Const, art. VIII, §§ 11, 12; AS 38.05.185, .195, .205, .300. It is also eonsis-tent with long-standing practice in Alaska, and other western states, of encouraging prospecting on public lands. Rickert v. Thompson, 8 Alaska 398, 415 (1933), aff'd, 72 F.2d 807 (9th Cir.1934). It has long been recognized in the western states that the mineral estate is dominant to the surface estate. Norken Corp. v. McGahan, 823 P.2d 622, 628 (Alaska 1991) (“[T]he mineral estate is the dominant estate, carrying with it the right to make such use of the, surface as is reasonably necessary to remove the minerals”); John F. Welborn, New Rights of Surface Oumers: Changes in the Dominant/Servient Relationship between the Mineral and Surface Estates, 40 Rocky Mtn. Min. L. Inst. § 22.02 (1994). Even assuming that rights of surface owners are either dominant or require full compensation when harmed by exercise of rights of access to the reserved mineral estate, the owner of the surface estate cannot altogether deny access to the mineral estate. Cf. Norken Corp., 823 P.2d at 628 n. 5.

3. Effect of failure to comply with AS 38.05.130

Alaska Statute 38.05.130 contains no explicit remedy for its violation, and says nothing about invalidating a claim staked in violation of the statute.²³ Nor does the regulation specify or imply a remedy of invalidation or ejectment. 11 AAC 96.140(10). Any judicially implied remedy must be consistent with the purpose of the statute. We conclude that it was error to grant the remedy ordered by the superior court, ejectment.²⁴

As seen above, section .130 protects landowners financially, but does not allow them to completely close their lands to mineral exploration. Consequently, it is enough that landowners be placed in the same position they would have enjoyed had the statute been observed, and an agreement reached or a bond posted. Indemnification, not ejectment, is the appropriate remedy for failing to reach agreement or post a bond. This result sustains the locator’s right of entry, and preserves both the locator’s incentive to satisfy the requirements of section, .130 and the landowner’s incentive to act reasonably during negotiations with the locator.²⁵.

The landowners argue that this court “specifically noted” Hayes’s violation of the statute and regulation in A.J. Associates, citing to 846 P.2d at 134. The only passage on the cited page that has any potential bearing cannot fairly be read to say that we held that Hayes violated the statute and regulation. That sentence reads: “The court also pointed to Hayes’ violation of AS 38.05.130 and 11 AAC 96.140(10) which require posting of a bond to protect the owner of the surface estate prior to mining-related activity.” The quoted sentence simply, restated the conclusion of the superior court (the “court”), and did not purport to be our holding on that question. Indeed, it was not necessary for us to decide there whether Hayes violated the statute or regulation.-

The landowners also argue that the State, in its amicus brief, has agreed that “AS 38.05.130 and 11 AAC 96.140(10) require ‘a damage agreement ... or surety bond prior to entry onto the land in, order to stake a valid location.’ ” We do not read the State’s amicus brief so broadly. The full sentence that the landowners quote in part reads as follows: “Since AS 38.05.130 and 11 AAC 96.140(10) [require] a damage' agreement or surety bond prior to mineral exploratory activity, it is consistent to therefore interpret AS 38.05.130 and 11 AAC 96.140(10) as requiring a damage agreement or surety bond prior to entry onto the land in order to stake a valid location.” (Emphasis added.) The State’s amicus brief gives examples of mineral exploratory activities that do not involve entry or cause no additional disturbance to the land. “In the preceding examples the mineral exploratory activities are not subject to AS 38.05.130.” The State further observes that “the fact that exploration came before staking, does not ipso facto mean that staking requires a bond.” In context, the State seems to recognize that normally some mineral exploratory activity precedes a valid location, and that entry for the purpose of staking requires a damage agreement or surety bond because any exploratory activity preceding the staking will normally require an agreement or bond. The State does not seem to assert that staking, without more, falls within section .130.

The landowners also argue that there is no personal “implicit right” to prospect or to mine that “trumps the State’s authority to manage these resources as it sees fit.” That assertion is correct, but the State’s policy in managing these resources is expressed in AS 38.05.185, .195, .250, .300, and article VIII, sections 11 and 12 of the Alaska Constitution. Hayes did not violate this policy when he entered to stake these two claims in 1982.

4. Landowners’ alternative arguments for affirmance

The landowners ask us to affirm the ejectment on two alternative grounds.²⁶

Rights to mineral deposits in : submerged land are not subject to appropriation by prior discovery, location, and recording. AS 38.05.205, .250. Arguing that the property was “submerged land,” the landowners assert that Hayes acquired no rights through staking his claims, and is therefore subject to ejectment.

This position is without merit. Even though the land beneath the tailings was once submerged, the property became ordinary real estate long ago. Alaska Juneau Forest Indus., 748 P.2d at 336. Additionally, the tailings are above mean high tide. Id. at 337. The property is not in fact “submerged land.” AS 38.05.965(21).²⁷

The landowners alternatively assert that Hayes failed to comply with the technical requirements of AS 38.05.195 for locating a claim. Such alleged failures do not necessarily invalidate a locator’s rights. Alaska Statute 38.05.185(b) explicitly states as much, as long as “it appears to the satisfaction of the commissioner that the mining lessee or the locator complied as nearly as possible under the circumstances of the case, and that no conflicting rights are asserted by any other person.” We cannot affirm the summary judgment on the theory Hayes did not fulfill the statutory requirements for locating a mining leasehold.'

5. Attorney’s fees in the ejectment action

In 1995 the superior court awarded the landowners $60,000 in Civil Rule 82 attorney’s fees. Hayes challenges the award.

Fees are awarded to the “prevailing party.” Alaska R. Civ. P. 82. A party does not have to prevail on all issues to be a prevailing party. Day v. Moore, 771 P.2d 436, 437 (Alaska 1989). The general rule under Civil Rule 82 is that the prevailing party is the party who has successfully prosecuted or defended against the action; it is the one who is successful on the main issue and the judgment entered. Id.

We held above that it was error to order Hayes’s ejectment. The landowners are consequently no longer the prevailing parties in the ejectment action. See In re Application for Water Rights, 891 P.2d 981, 984 (Colo.1995) (“In order to be the prevailing party, one must ... achieve some of the benefits sought by the litigation.”). Consequently we vacate the fees award and remand for further proceedings.

B. Hayes v. Jansen Appeal: The Propriety of the Landowners’ Summary Judgment

Hayes filed tort claims against the landowners in 1993, asserting that they interfered with Hayes’s rights relating to' Taku Nos. 1 through 8. The superior court granted partial summary judgment to the landowners, dismissing all but two of Hayes’s tort claims. Hayes appeals from the partial summary judgment.

In reviewing a grant of summary judgment, we must determine whether a genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Thorstenson v. ARCO Alaska, Inc., 780 P.2d 371, 374 (Alaska 1989). We draw all reasonable inferences in favor of the non-movant. Swenson Trucking & Excavating v. Truckweld Equip. Co., 604 P.2d 1113, 1116 (Alaska 1980). ‘

1. Relevant statutes and regulations governing rights accruing to mineral locators

Alaska Statute 38.05.185 establishes the basic framework for acquisition of rights to mineral interests held by the State. That statute further allows DNR to restrict the acquisition of those rights. See supra note 12. DNR thus may either close land to mineral location or restrict state land to mining under lease.

A DNR regulation restricts mining on lands in which the State reserved mineral rights after their sale or. lease to private parties. When Hayes staked his claims, that regulation read:

This section constitutes the commissioner’s finding, in accordance with AS 38.05.185(a), that selling, leasing, or otherwise disposing of any interest in land other than a locatable mineral interest, with the mineral rights reserved to the state, creates potential use conflicts requiring 'that mining be allowed only under written leases. If the land remains open to location, any location made on that land after the disposal is a leasehold location.

Former 11 AAC 86.135(b) (am.5/18/90).²⁸ Any location made upon lands conveyed to a private party, with a mineral interest reserved to the State, is thus a “leasehold location.”

One who makes a leasehold location, by prior discovery, location, and recording, receives a preference right to a lease. AS 38.05.205; 11 AAC 86.300 (1996). Under 11 AAC 86.305, the holder of such a preference right is required to apply for a lease from DNR in order to begin mining operations. By statute, “[m]inerals may not be mined and marketed or used until a lease is issued, except for limited amounts necessary for sampling or testing.” AS 38.05.205. If DNR rejects the lease application, the location is void.²⁹ 11 AAC 86.305(d) (1996).

2. Rights conferred by Hayes’s locations

Under the regime established by these statutes and regulations, any location made by Hayes on ATS 201 was a leasehold location. ATS 201 was conveyed to a private party. Under 11 AAC 86.135(b) and AS 38.05.185(a), DNR restricted the property to mining under lease only. Hayes’s location, therefore, was a leasehold location. As such, it entitled him only to a preference right to a lease; Hayes had no right to conduct mining activities until he applied for and received such a lease from DNR. Hayes raises three major arguments to the contrary; none is convincing. He first argues that 11 AAC 86.135(b) does not apply to his locations. He suggests that by conveying the property to the landholders, the State did not sell, lease, or otherwise dispose of any interest in land, and that 11 AAC 86.135(b) hence did not restrict the property to mining under lease. The record indicates otherwise. The State’s patent granted the property, subject to the State’s mineral reservation, to the landowners, their heirs and assigns, in exchange for “good and valuable consideration.” The property was conveyed by the State to the landowners, and 11 AAC 86.135(b) squarely applies.

Hayes next asserts that this regulation does not apply to mineral, locations; in support he cites the regulation’s language limiting its effect to “the selling, leasing, or otherwise disposing of any interest in land other than a locatable mineral interest.” 11 AAC 86.135(b) (1985). The quoted language plainly refers to the interest conveyed by the State to the landowners, not the interest claimed by the mineral locator. When the State explicitly conveys a mineral interest to a private party, 11 AAC 86.135(b) does not apply. When the State conveys any other interest in land, the regulation applies. In this case the interest sold by the State to the landowners was not the mineral interest, but was instead a fee interest subject to the State’s statutory reservation of mineral rights. Therefore, the regulation applies to ATS 201.³⁰

Finally, Hayes argues that the production license DNR issued to Hayes in 1989 constituted a determination that Hayes was entitled to begin production on the property. Alaska Statute 38.05.207 mandates that “[a]n application for a production license shall be filed with the commissioner when a locator of a mining claim under AS 38.05.195 or a lessee of a mining location under AS 38.05.205 is prepared to produce minerals for sale in commercial quantities.” Hayes correctly points out that the statute requires a production license only for mining lessees and holders of mining claims. Hayes argues that because he was not a lessee when he received the license, DNR must have concluded that he held a mining claim rather than a leasehold location, and is not required to apply for a lease in order to mine.

This does not follow. DNR has promulgated regulations allowing issuance of production licenses to holders of a “mining leasehold location ... who are prepared to initiate or continue production of minerals for sale.” 11 AAC 86.700(a). The parties do not contend, nor does the statutory language suggest, that DNR cannot allow leasehold locators to apply for a production license and a lease simultaneously once they are prepared to mine. While AS 38.05.207 does not require holders of a leasehold location to apply for a production permit, neither does it forbid them from doing so.

Under 11 AAC 86.700(a), DNR will accept applications for production licenses from holders of leasehold locations. The requirements for issuance of a production license are set out in 11 AAC 86.700(c); a license will be granted if a “leasehold location has been discovered, located, filed, and maintained in accordance with AS 38.05.185-38.05.280; or ... a state mining lease has been issued.” 11 AAC 86.700(c)(4)(A) & (B) (emphasis added). DNR need not determine that the holder of a leasehold location is entitled to mine, under lease or otherwise, before it grants a permit. 11 AAC 86.700(c).

Hayes’s acquisition of a production license, therefore, is not inconsistent with the conclusion that he holds no more than a leasehold location and was required to apply for and obtain a mining lease before beginning to extract minerals from the property. Indeed, DNR explicitly informed Hayes that the “license authorizes the production of minerals for sale, subject to other applicable statutes and regulations.” (Emphasis added.)

We hold that any locations staked by Hayes were leasehold locations entitling him to no more than a preference right to a lease.³¹

3. Claims based upon Hayes’s right to mine

The first two counts of Hayes’s amended complaint are based upon his alleged right to “enter ... stake claims, develop, drill, mine, occupy and remain on [ATS 201].” Hayes claims that the landowners, both by preventing Hayes’s entry on the land and by placing improvements upon the property, have tortiously interfered with these activities. Hayes asserts that he has consequently been prevented from mining and extracting minerals from the property.

As explained above, however, Hayes has only a preference right to a lease. He has no right to mine or extract minerals until he receives a lease. The landowners are accordingly entitled to summary judgment on those counts as a matter of law; absent a right to mine, Hayes cannot claim that the landowners owed him any right to mine. It was appropriate to grant summary judgment regarding these-counts.

We partially affirm the superior court’s summary judgment with regard to Hayes’s request for a declaratory judgment establishing his right “to stake claims, develop, drill, mine, occupy, and remain upon the property.” As discussed above in Part III.A, Hayes may have the right to stake leasehold locations on the property; he does not possess any of the remaining rights claimed.

4. Abuse of Process

Hayes also alleges that the landowners tortiously “advised, stirred up and/or continued litigation.” The superior court found that “[n]one of the activities that have been described to support the allegations in the complaint are actionable.”

Abuse of process consists of two essential elements: ulterior purpose and a “willful act in the use of the process not proper in the regular conduct of the proceeding.” DeNardo v. Michalski, 811 P.2d 815, 317 (Alaska 1991) (citation omitted). Merely filing a suit, even for an improper purpose, is not sufficient for an abuse of process action. Id.

The landowners have acted to preserve their own claims to the surface of the property. Hayes has presented no evidence of an ulterior motive. Nor has he alleged any improper or irregular action taken by the landowners. The court properly granted summary judgment to the landowners.

5.Interference with prospective economic advantage

The superior court granted summary judgment to the landowners on Hayes’s claim of interference with prospective economic advantage.

The elements of that tort are: (1) the existence of a prospective business relationship between the plaintiff and a third party; (2) knowledge by the defendant of the prospective relationship, and intent to prevent its fruition; (3) conduct by the defendant interfering with the relationship; (4) failure of the prospective relationship to culminate in pecuniary benefit to the plaintiff; (5) causation of the plaintiffs damages by the defendant’s conduct; and (6) absence of privilege or justification for the defendant’s action. Oaksmith v. Brusich, 774 P.2d 191, 197-98 (Alaska 1989).

The superior court determined that Hayes’s alleged damages were not caused by the landowners’ conduct. The court found that Hayes unreasonably failed to apply for a mining lease, and that any lost economic opportunity resulted from this failure. This was error. Hayes presented evidence that his lease application was rejected, as a result of his dispute with the landowners. DNR explained its refusal to issue Hayes a lease as follows:

A.J. Industries ... [is] protesting the issuance of a lease to you and assert[s] that your claims conflict with their Alaska Timber # 1-4 claims_

Under authorities granted to me by A.S. 38.05.205 and 11 AAC 86.305(F), this letter constitutes my decision not to adjudicate the conflict between the Taku # 1-4 claims and Alaska Timber # 1-4 claims. The parties are advised to resolve this- conflict themselves. As such, your lease application is rejected, a new application may be submitted after resolution of this conflict.

Drawing all inferences in favor of Hayes, this letter creates a genuine issue of material fact as to whether Hayes applied for a lease, and whether any failure to pursue a lease was unreasonable.

We nonetheless affirm the superior court’s judgment on an alternative ground. “This court is not bound by the reasoning articulated by the trial court and can affirm a grant of summary judgment on alternative grounds.” Wright v. State, 824 P.2d 718, 720 (Alaska 1992). Hayes submitted evidence of a single prospective business relationship, with an Australian company, based upon his mining locations. A representative of the company affied that in 1989 it and “other investors elected not to go forward because of the pending lawsuit.” Therefore, any tor-tious conduct by the landowners that interfered with that business relationship must have taken place no later than 1989. The applicable limitations period is two years. AS 09.10.070; see Blake v. Gilbert, 702 P.2d 631, 639 (Alaska 1985), overruled on other grounds, Bibo v. Jeffrey’s' Restaurant, 770 P.2d 290, 296 n. 9 (Alaska 1989). Hayes did not file his tort action until 1993. His action was consequently time-barred.

C. Jansen v. Hayes: The Propriety of Denying Summary Judgment to the Landowners

The landowners also moved for summary judgment with respect to Hayes’s claims that the landowners tortiously destroyed monuments, markers, other items owned by Hayes, and an access road he constructed. The trial court found that genuine issues of material fact required a trial regarding those tort claims. It consequently denied the landowners’ motion for summary judgment.

The landowners argue in their cross-appeal that they were entitled to summary judgment on these causes of action. They contend that an independent contractor, Knik Construction, removed Hayes’s stakes and monuments and destroyed the access road. Knik Construction is not a party to this case, and the landowners contend that they cannot be held liable for its actions.

The general rule is that a principal is not liable for torts committed by an independent contractor. Sievers v. McClure, 746 P.2d 885, 889 n. 6 (Alaska 1987); Restatement (Second) of Torts § 409 (1965). However, the employer of an independent contractor may be liable for harm caused by acts or omissions committed by the independent contractor pursuant to the employer’s orders or instructions. Moloso v. State, 693 P.2d 836, 840 n. 3 (Alaska 1985); Restatement (Second) of Torts § 410 (1965). Hayes presented evidence sufficient to create a genuine issue of material fact as to whether Knik Construction was acting under Jansen’s direction when it destroyed Hayes’s property.

Accordingly, we conclude that the trial court did not err in denying summary judgment to the landowners on these tort claims.

IV. CONCLUSION

Four justices have participated in the decision of this ease. Three justices agree with Part III.A.1 of this opinion and hold that the state’s mineral interest in lands on which the surface estate has been conveyed to a third party is “state land.” The court is evenly divided regarding the discussion in Part III. A.2 about whether AS 38.05.130 applies to Hayes’s staking activity. The superior court’s conclusion that section .130 governs the staking activity is therefore affirmed. Three justices agree with the result reached in Part III.A.3 concerning the effect of failure to comply with AS 38.05.130. Accordingly, the superior court on remand should determine an appropriate amount and means of indemnification pursuant to section .130. The superior court may require the parties to petition the director of the Division of Mining to determine the sufficiency of a surety bond as to form, amount, and security pursuant to section .130. Three justices agree with Part III.A.4, which rejects the landowners’ alternative arguments for affir-mance. Three justices agree with Part III. A.5, which vacates the award of attorney’s fees in the ejectment action. All justices agree with the result of Part III.B, which affirms partial summary judgment in favor of the landowners as to all but two of Hayes’s tort claims. Three justices agree with Part III.C., which affirms the trial court’s denial of summary judgment as to the Hayes’s tort claims for the destruction of property.

Accordingly, the judgment of the superior court is AFFIRMED in part, REVERSED in part, VACATED in part, and REMANDED for further proceedings.

2 . A.J. Associates, Alaska Marine Lines, Inc., Gordon S. Harang, and Eileen S. Harang are successors in interest to A.J. Industries and A.J. Forest Industries. See Hayes v. A.J. Assocs., Inc., 846 P.2d 131, 132 (Alaska 1993).

Hayes sued A.J. Associates, Alaska Marine Lines, Inc., the Harangs, Jim Jansen, Lynden, Inc., Reed Stoops, Arrowhead Transfer, and Bank of California in Hayes v. Jansen, No. 1JU-93-0397 Ci (Alaska Super., June 16, 1994). Lynden, Inc. and Arrowhead Transfer have ownership interests in the property. Jim Jansen is president of Lynden Inc. Reed Stoops is president of A.J. Associates. Bank of California had an ownership interest in the property at potentially pertinent times. We refer to all parties adverse to Hayes as "the landowners.”

3 . The patent reserved to the State, “its lessees, successors, and assigns forever, all oils, gases, coal, ores, minerals, fissionable materials, and fossils of every name, kind or description," as well as "the right to explore” the property for such materials and "the right to enter ... upon said -lands, or any part or parts thereof, at any and all times for the purpose of opening, developing, drilling and working mines or wells on these or other lands, and taking out and removing therefrom all such ... ores, minerals_”

4 . Howard Hayes began to recover gold from the tailings in about 1954. His son Michael later joined these efforts.

5 . Hayes staked two adjacent claims, Taku Nos. 3 and 4, in 1987. Hayes also acquired four other claims on ATS 201, Taku Nos. 5-8. These claims had been staked by a third party in 1988. They are coextensive with Taku Nos. 1-4.

6 . AS 38.05.125(a) provides:

Each contract for the sale, lease or grant of state land, and each deed to state land, properties or interest in state land, made under AS 38.05.045-38.05.120, 38.05.321,: 38.05.810-38.05.821, AS 38.08, or AS 38.50 except as provided in AS 38.50.050 is subject to the following reservations: "The party of the first part, Alaska, hereby expressly saves, excepts and reserves out of the grant hereby made, unto itself, its lessees, successors, and assigns forever, all oils, gases, coal, ores, minerals, fissionable materials, geothermal resources, and fossils of every name, kind or description, and which may be in or upon said land above described, or any part thereof, and the right to explore the same for such oils, gases, coal, ores, minerals, fissionable materials, geothermal resources, and fossils, and it also hereby expressly saves and reserves out of the grant hereby made, unto itself, its lessees, successors, and assigns forever, the right to enter by itself, its or their agents, attorneys, and servants upon said land, or any part or parts thereof, at any and all times for the purpose of opening, developing, drilling, and working mines or wells on these or other land and taking out and removing therefrom all such oils, gases, coal, ores, minerals, fissionable materials, geothermal resources, and fossils, and to that end it further expressly reserves out of the grant hereby made, unto itself, its lessees, successors, and assigns forever, the right by its or their agents, servants and attorneys at any and all times to erect, construct, maintain, and use all such buildings, machinery, roads, pipelines, powerlines, and railroads, sink such shafts, drill such wells, remove such soil, and to remain on said land or any part thereof for the foregoing purposes and to occupy as much of said land as may be necessary or convenient for such purposes hereby expressly reserving to itself, its lessees, successors, and assigns, as aforesaid, generally all rights and power in, to, and over said land, whether herein expressed or not, reasonably necessary or convenient to render beneficial and efficient the complete enjoyment of the property and rights hereby expressly' reserved.' ’

The subsection .125(a) reservation is mandated under the terms of section 6(i) of the Alaska Statehood Act as to lands known to contain valuable minerals at the time of state selection. Section 6(i) provides in relevant part:

The grants of mineral lands to the State of Alaska under subsections (a) and (b) of this section are made upon the express conditions that all sales, grants, deeds, or patents for any of the mineral lands so granted shall be subject to and contain a reservation to the state of all the minerals in the lands so sold, granted, deeded, or patented, together with the right to prospect for, mine, and remove the same. Mineral deposits in such lands shall be subject to lease by the state as the state legislature may direct: Provided, that any lands or minerals hereafter disposed of contrary to the provisions of this section shall be forfeited to the United States by appropriate proceedings instituted by the attorney general for that purpose in the United States District Court for the District of Alaska.

See Trustees for Alaska v. State, 736 P.2d 324, 331-42 (Alaska 1987) (discussing history and purpose of the reservation of mineral rights to the State).

7 . Superior Court Judges Walter L. Carpeneti and Thomas E. Schulz had previously concluded that Hayes was required to comply with AS 38.05.130 before entering the land to stake these two claims, but failed to do so.

8 . AS 38.05.130 provides:

Damages and posting of bond. Rights may not be exercised by the state, its lessees, successors or assigns under the reservation as set out in AS 38.05.125 until the state, its lessees, successors, or assigns make provision to pay the owner of the land full payment for all damages sustained by the owner, by reason of entering upon the land. If the owner for any cause refuses or neglects to settle the damages, the state, its lessees, successors, assigns, or an applicant for a lease or contract from the state for the purpose of prospecting for valuable minerals, or option, contract or lease for mining coal or lease for extracting geothermal resources, petroleum or natural gas, may enter upon the land in the exercise of the reserved rights after posting a surety bond determined by the director, after notice and an opportunity to be heard, to be sufficient as to form, amount, and security to secure to the owner payment for damages, and may institute legal proceedings in a court where the land is located, as may be necessary to determine the damages which the owner may suffer.

9 . We do not consider Hayes’s opening argument that the landowners lack standing to seek ejectment because they have no interest in the minerals Hayes seeks to mine. In a decision issued prior to Hayes’s last appeal, the superior court held that the landowners had standing to seek ejectment. Because Hayes did not appeal that ruling, we choose to treat it as final and as law of the case as to the ejectment action. Cf. Austin v. Fulton Ins. Co., 498 P.2d 702, 704 (Alaska 1972) (stating that trial court holding not disputed in appellant’s prior appeal would be law of the case in a subsequent appeal between the same parties). But cf. Siggelkow v. State, 731 P.2d 57, 59 n. 1 (Alaska 1987) (holding law of case did not preclude consideration of issue of jurisdiction not raised by appellant in his prior appeal); Wolff v. Arctic Bowl, Inc., 560 P.2d 758, 763 (Alaska 1977) (holding law of the case did not preclude consideration of issue raised in prior unsuccessful petition for review that did not determine the merits of the issue).

10 . This issue turns on statutory interpretation and is subject to our independent review. Sauve v. Winfree, 907 P.2d 7, 9 (Alaska 1995); Hood v. State, 574 P.2d 811, 813 (Alaska 1978).

11 . Article VIII, section 11 of the Alaska Constitution provides in part that "Discovery and appropriation shall be the basis for establishing a right” in minerals reserved to the State and subject to location. It also provides that "[pjrior discovery, location, and filing, as prescribed by law, shall establish a prior right” to "minerals reserved to the State which, upon the date of ratification of this constitution ... were subject to location under the federal mining laws.”

11 AAC 86.105 provides: "DISCOVERY DEFINED. ‘Discovery’ means a finding of valuable mineral as would justify an ordinarily prudent person in expending further time, labor, and money upon the property with a reasonable expectation of developing a paying mine.”

11 AAC 86.200 provides: "DISCOVERY REQUIRED. No mining claim location is complete until after the discovery, as defined in 11 AAC 86.105, of locatable minerals within the limits of the claim."

12 . AS 38.05.185(a) provides:

(a) The acquisition and continuance of rights in and to deposits on state land of minerals, which on January 3, 1959, were subject to location under the mining laws of the United States, shall be governed by AS 38.05.185-38.05.275. Nothing in AS 38.05.185 -38.05.275 affects the law pertaining to the acquisition of rights to mineral deposits owned by any other person or government. The director, with the approval of the commissioner, shall determine that land from which mineral deposits may be mined only under lease, and, subject to the limitations of AS 38.05.300, that land that shall be closed to mining. State land may not be closed to mining or mineral location except as provided in AS 38.05.300 and unless the commissioner makes a finding, that mining would be incompatible with significant surface uses on the state land. State land may not be restricted to mining under lease unless the commissioner determines that potential use conflicts on the state land require that mining be allowed • only under written leases issued under AS 38.05.205 or the commissioner has determined that the land was mineral in character at the time of state selection. The determinations required under this subsection shall be made in compliance with land classification orders and land use plans developed under AS 38.05.300.

13 . DNR regulations in force at pertinent times described the technical requirements for discovery, location, and recording. 11 AAC 86.200-.225 (1996). “Staking” is accomplished by placing stone or post monuments at the four corners of the claim or leasehold location, 11 AAC 86.205, with a notice on the northeast monument, 11 AAC 86.210.

14 . It is apparently this sentence to which the dissenting opinion of Justice Rabinowitz refers in stating at page 52 that "[T]he court relies on the definition section of the mining code to conclude that ‘state land’ includes privately-owned surface lands if the state has retained the mineral rights.” We draw no such conclusion in that sentence or elsewhere in this opinion. Privately owned surface lands are not "state land” even though the State has reserved mineral rights in them under AS 38.05.125(a). That reservation clearly does not make the surface estate "state land.”

15 . It is interesting to look at the 1959 Alaska Lands Act in conjunction with the 1961 Amendments. Article IX of the 1959 Act expressly covered reserved mineral rights by stating that on lands conveyed to others in which mineral rights were reserved to the State, the right to mine and remove the minerals could only be acquired by lease. Article IX was amended in 1961; the legislature delegated authority to the director to determine "those lands which mineral ’deposits may only be mined under lease.” ArticIeTX, ch. 3, SLA 1961. The term "[tjhose lands” encompasses all lands previously enumerated in Article IX before amendment, including "lands which have been sold ... reserving such minerals to Alaska_" See AS 38.05.185(a).

16 . Two members of the court, Justice Matthews and the author, join in the analysis contained in Part III.A.2 of this opinion, and are of the opinion that AS 38.05.130 and 11 AAC 96.140(10) did’ not apply to Hayes's staking activity in 1982. Two other members, Justice Rabinowitz and Justice Shortell, conclude in their separate opinions that Hayes's staking activity on ATS 201 constituted “exploration” and was therefore subject to AS 38.05.130 and 11 AAC 96.140(10). Given this two-two split, this court affirms the superior court’s conclusion that the statute and regulation applied to Hayes's staking activity.

17 . The State in its amicus brief has hypothesized several situations in which the only physical entry following sale to the landowner would be for the exclusive purpose of staking. The State appears to imply that such situations would be relatively rare. See Babcock v. O'Lanagan, 7 Alaska 171, 176 (1924) ("It is undisputed that a subsequent locator can adopt the discoveries of a prior locator.”).

18 . The trial court appears to have assumed that any exploration had occurred while Hayes was the lessee of the landowners. See A.J. Assocs., 846 P.2d at 134.

19 . See 11 AAC 96.140(11), which provides:

entry on all lands under mineral permit, oil and gas exploration license, lease, or claim, by other than the holder of the permit, oil and gas exploration license, lease, or claim, or the holder’s authorized representative, shall be made in a manner that will prevent unnecessary or unreasonable interference with the rights of the permittee, licensee, lessee, or claimant.

20 .The two members of the court who believe section .130 to be inapplicable here emphasize that a would-be locator of minerals under lands subject to the subsection .125(a) reservation may not enter the surface estate with impunity either to explore for minerals or for the limited purpose of staking. We leave open any question whether an unconsented entry in a given case may be sufficiently inconsistent with existing use of the surface estate that it cannot be deemed a valid exercise of the State’s reserved rights. Cf. the dissenting opinion of Justice Rabinowitz at 573. Whether the unconsented entry to erect monuments in a homeowner’s flower beds falls in such a category remains to be seen. That is not the fact situation here. It will be for the superior court on remand to consider the extent to which this proposition may have any bearing.

Even though the would-be locator can "force" entry to carry out activities subject to section .130, it can only do so in accordance with that statute. The statute presumes that a bond will adequately protect the landowner. If, in a given case, the director determines that no bond could protect the owner, entry would be denied.

The dissenting opinion assumes mining or even exploration could cause a surface owner to suffer substantial damages. Dissent at 573 n.2. The sufficiency of any bond required for Hayes to exercise his rights is in the first instance a matter for the director under section . 130. We note that there is no claim that Hayes’s mere act of staking caused the landowners any significant dámages.

21 . 11 AAC 96.140(10) provides:

no person may engage in mineral exploratory activity on land, the surface of which has been granted, licensed, or leased, by the State of Alaska, or on land for which the state has received the reserved interest of the United States until good-faith attempts have been made to agree with the surface owner, licensee, or lessee on settlement for damages which may be caused by such activity. If agreement cannot be reached, or the lease, oil and gas exploration license, or surface owner cannot be found within a reasonable time, operations may be commenced on the land only with specific approval of the director, and after making adequate provision for full payment of any damages which the owner may suffer.

22 . AS 09.45.060 provides: “A person may not enter upon any land, tenement, or other real property except in cases where entry is given by law. In those cases the entry may not be made with force but only in a peaceable manner.”

23 . When the legislature intends that invalidation of a mining claim be a remedy for failure to comply with statutory requirements, it has specifically so provided. E.g., AS 27.10.140 (placer mining claim location in violation of law is void).

24 . Because Justice Matthews and the author conclude that Hayes's entry did not violate AS 38.05.130 or 11 AAC 96.140(10), they necessarily also conclude for that reason that the superior court erred in holding that Hayes’s unconsented, unbonded entry required his ejectment and invalidated his right to priority in obtaining a lease for either location.

25 .We need not decide here whether ejectment might be the only effective remedy following a violation of section .130 by a locator who was both unbonded and unable to indemnify the landowner for damage caused by the entry.

26 . We can affirm a summary judgment on grounds different than those found by the trial court. Wright v. State, 824 P.2d 718, 720 (Alaska 1992).

27 . We see no reason to rely on the definition of "lands beneath navigable waters,” found in the federal Submerged Lands Act, codified at 43 U.S.C. § 1301(a)(3) (1986). That term has no bearing here.

28 . This subsection was amended in 1996 to read: This section constitutes the commissioner's finding, in accordance with AS 38.05.185(a), that selling or leasing of land other than a locatable mineral interest, with the mineral rights reserved to the state, creates potential use conflicts requiring that mining be allowed only under written leases. If the land remains open to location, any location made on that land after such a sale or lease is a leasehold location.

11 AAC 86.135(b) (1996).

Hayes argues briefly that DNR did not make the determination required to restrict mining under AS 38.05.185(a). While a specific finding of incompatibility is required to close land to mining, the statute makes it clear that in order to restrict land to mining under lease, the commissioner need only determine that "potential use conflicts on the state land” so require. 11 AAC 86.135(b) explicitly reflects this determination.

29 . Hayes .argued in the superior court that DNR lacked discretion to deny a lease to the holder of a valid mining location, and that therefore his possession of such a valid location was tantamount to a right to mine. Hayes does not make that argument on appeal, and has therefore waived it. See Katmailand, Inc. v. Lake & Peninsula Borough, 904 P.2d 397, 402 n. 7 (Alaska 1995).

30 . Hayes also argues that 11 AAC 86.135(b) does not apply to the property because it qualifies as "tide and submerged land." The regulations and the statute contain no language that might make this distinction relevant to the application of the leasing restriction.

31 . The superior court found there was a genuine issue of material fact whether the landowners consented to the staking of Taku Nos. 3 through 8. It accordingly held that these might be valid locations. ' It relied upon the ejectment action to hold that Taku Nos. 1 and 2 were invalid. We have held that consent was unnecessary for the 1982 staking entries, and that ejectment would not be the appropriate remedy for Hayes’s violation of ÁS 38.05.130. Assuming Hayes can meet the other requirements for valid location, Taku Nos. 1 through 8 are valid leasehold locations.