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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Angabooguk et al v State Dept. of Natural Resources (07/13/2001) sp-5431

Angabooguk et al v State Dept. of Natural Resources (07/13/2001) sp-5431

     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.



             THE SUPREME COURT OF THE STATE OF ALASKA


JOHNNY L. ANGNABOOGUK,        )
PHYLLIS BACKHAUS, ALVIN O.    )    Supreme Court No. S-9439
BRAMSTEDT, JAMES and MARILYN  )
GARRISON, GARR and JOANNE     )    Superior Court No.
GRAHAM, APRIL A. HALLIDAY-    )    3AN-99-7266 CI
SANDAHL, JOHN E. HODGE,       )
DONALD E. and ROMOLA A.       )    O P I N I O N
LOESCHE, WILLIAM E. and       )
LUCILLE MAGEE, SR., CURTIS    )    [No. 5431 - July 13, 2001]
and LORRI PATTERSON, and      )
ALICE WHITE,                  )
                              )
             Appellants,      )
                              )
     v.                       )
                              )
STATE OF ALASKA, DEPARTMENT   )
OF NATURAL RESOURCES,         )
DIVISION OF FORESTRY,         )
                              )
             Appellee.        )
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                        John Reese, Judge.

          Appearances:  Peter Gruenstein and Daniel
Hickey, Gruenstein & Hickey, Anchorage, and John H. Hinderaker and
Gerald M. Nolting, Faegre & Benson, LLP, Minneapolis, Minnesota,
for Appellants.  William F. Morse, Assistant Attorney General,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Appellee.

          Before:  Fabe, Chief Justice, Matthews, and
          Carpeneti, Justices.  [Eastaugh and Bryner,
Justices, not participating.]


          FABE, Chief Justice.

I.   INTRODUCTION
          In June 1996 the Miller's Reach Fire burned over 37,000
acres in the Matanuska-Susitna Valley.  The State, Department of
Natural Resources, Division of Forestry responded to the initial
fire and took control of firefighting operations from the local
fire departments present at the scene.  A group of plaintiff
landowners who suffered damage to their homes and property brought
suit, claiming that the State's firefighting activities were
negligently conducted.  The plaintiffs' claims were dismissed by
the superior court below on the basis of discretionary function
immunity under AS 09.50.250, and attorney's fees were awarded to
the State.  The plaintiffs have appealed these decisions.  Because
we conclude that the plaintiffs have alleged a set of facts that is
consistent with an enforceable cause of action, and that the State
is not immune as a matter of law under AS 09.50.250, we reverse the
judgment of the superior court.
II.  FACTS AND PROCEEDINGS
          Because this is an appeal from an Alaska Civil Rule 12(b)
dismissal, we will assume that the plaintiffs' factual allegations
are true. [Fn. 1]
          This appeal concerns the Miller's Reach Fire that burned
from June 2 through June 15, 1996 in the Matanuska-Susitna Valley. 
This fire burned over 37,000 acres and destroyed more than 500
homes.
          On June 2, 1996, the initial fire began near a
residential development in Houston, Alaska.  Local volunteer fire
departments from Houston, Big Lake, Willow, and Meadow Lake
responded to the fire and fought the fire during the evening of
June 2.  During the evening of June 2 the local fire departments
successfully brought the fire under control.
          The State, Department of Natural Resources, Division of
Forestry (Forestry) also responded to the fire on the evening of
June 2, and assumed control of the fire suppression effort.  Even
though the fire was not completely extinguished, during the night
of June 2 Forestry sent the local fire departments and most of
their equipment back to their stations.  Forestry conducted no
firefighting activities during the night of June 2.
          On the morning of June 3 the local fire departments
returned to the scene, but were again sent away by Forestry's
incident commander on the scene.  The forces sent away by Forestry
represented the majority of the resources available to fight the
fire.  The local fire departments had firefighting equipment at the
scene including a fire engine that was capable of putting 1,000
gallons of water per minute on the fire.  However, Forestry had
only portable pumps with much smaller capacity.
          Forestry's incident commander and the remaining forces
under his control spent the morning of June 3 removing hoses that
had been placed around the perimeter of the fire by the local fire
departments.  These forces then replaced these hoses with
Forestry's own hoses.  During the morning of June 3 Forestry
personnel did not put any water on the fire and did not construct
any sort of mineral-soil firewall to keep the fire from spreading.
          On the afternoon of June 3 Forestry employees started one
or more burnouts -- fires set deliberately to dispose of unburned
fuel that could assist the spread of the fire -- near the perimeter
of the fire.  At this time Forestry did not have adequate resources
available to suppress one of these burnouts if one were to burn out
of control.
          One of the burnouts did burn out of control in the
afternoon and evening of June 3.  The Forestry employee who started
the out-of-control burnout sought help from other Forestry
employees, and these personnel attempted to extinguish the burnout. 
However, at approximately 6:00 p.m. on June 3 the incident
commander ordered all personnel on the scene to stop their
firefighting activities and vacate the perimeter of the fire, and
to gather at the Little Susitna River for dinner.  The Forestry
employees who had been dealing with the out-of-control burnout
vacated the scene of the fire along with all other personnel at the
scene.  No lookouts or other personnel were posted on the perimeter
of the fire at this time.
          While the firefighting personnel were eating dinner at
the Little Susitna River, shortly after 6:00 p.m., a column of
smoke from the out-of-control burnout rose and was clearly visible
to hundreds of people including Forestry's incident commander.  At
this time, some of Forestry's personnel, federal "smoke jumpers,"
also observed the column of smoke and radioed the incident
commander to ask if any action should be taken.  The incident
commander told them not to worry about it, claiming (incorrectly)
that the fire was not a problem because it was within the perimeter
of the fire area. [Fn. 2]  The incident commander did not check the
location of the fire and did not actually know where it was.
          The federal smoke jumpers who spoke with the incident
commander disregarded the incident commander's instructions and
investigated the column of smoke.  The smoke jumpers found the
out-of-control burnout and attempted to extinguish it.  Other
personnel were summoned to the area to help with these efforts. 
Attempts to extinguish the burnout were hampered because the local
fire departments' hoses and fire engine were no longer available,
and because Forestry employees had turned off the Forestry pumps
during the 6:00 p.m. dinner.  After reactivating the pumps,
Forestry personnel continued their attempts to extinguish the
burnout, but before they could do so, the burnout "spotted"[Fn. 3]
and started a second fire, which the firefighting personnel on the
scene were unable to reach.  This second fire crossed Miller's
Reach Road and became the "Miller's Reach Fire"that consumed
37,000 acres.
          Two suits were brought in superior court by different
groups of landowner plaintiffs against Forestry: the case at bar,
before Superior Court Judge John Reese, and Bartek v. State of
Alaska, Department of Natural Resources, before Superior Court
Judge Beverly Cutler. [Fn. 4]  On July 20, 1999, Forestry moved to
dismiss the complaint in this case, under three different theories:
that the action was barred by the statute of limitations; that the
State lacked a duty of care; and that the State was immune under
the Alaska Tort Claims Act, AS 09.50.250.  Judge Reese dismissed
the case on immunity grounds without mentioning the other two
theories.  In doing so, Judge Reese adopted the oral ruling of
Judge Cutler, who had earlier dismissed the Bartek action on the
same grounds. [Fn. 5]
          After the dismissal, the superior court granted
attorney's fees to Forestry under Civil Rule 68.
          The plaintiffs have appealed the dismissal and the award
of attorney's fees.
III. STANDARD OF REVIEW
          This appeal requires us to review the superior court's
grant of a Rule 12(b)(6) motion to dismiss for failure to state a
claim upon which relief can be granted.  We will review this
dismissal de novo, assuming the truth of all facts alleged in the
complaint. [Fn. 6]  We have explained that "[b]ecause complaints
must be liberally construed, a motion to dismiss under Rule
12(b)(6) is viewed with disfavor and should rarely be granted."
[Fn. 7]  A complaint need only allege a set of facts "consistent
with and appropriate to some enforceable cause of action."[Fn. 8] 
Therefore, a complaint should not be dismissed for failure to state
a claim unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of the claims that would entitle the
plaintiff to relief. [Fn. 9]
IV.  DISCUSSION
          The superior court dismissed the plaintiffs' claims based
on Forestry's discretionary function immunity under AS 09.50.250. 
However, in this appeal Forestry also claims that dismissal is
proper because Forestry owed the plaintiffs no actionable duty of
care.  Even though the court below did not rule on the existence of
a duty of care, we have stated that "[d]etermining whether a duty
exists in [a case alleging negligence by the State] is the first
analytical step in deciding whether a negligence action can be
maintained."[Fn. 10]
          Therefore, the dismissal below could be affirmed on one
of two grounds: [Fn. 11] (1) Forestry owed no actionable duty of
care to the plaintiffs, or (2) Forestry was immune from suit under
AS 09.50.250.  We conclude that neither of these grounds supports
dismissal.
     A.   Forestry Owed the Plaintiffs an Actionable Duty of Care.

          A duty of care may arise either from statutory sources or
from public policy. [Fn. 12] 
          1.   Forestry did not have a statutory duty of care.

          Three possible sources for a statutory duty of care are
mentioned by the parties, and each of these will be discussed in
turn: (1) AS 41.15.110(a); (2) 11 Alaska Administrative Code (AAC)
95.400-.495; and (3) Forestry's internal rules and guidelines.
               a.   Alaska Statute 41.15.110(a) does not create a
duty of care.

          The plaintiffs claim that Forestry owed the plaintiffs a
statutory duty of care to fight the fire non-negligently under AS
41.15.110(a).  That statute provides:
          Uncontrolled spread of fire;  leaving fire
unattended.  (a) A person who knows of a fire or sets a fire on
forested land owned, possessed, or controlled by the person, shall
exercise due care to prevent the uncontrolled spread of the fire. 
A person failing to exercise due care which results in spread of
the fire and damage to property of another is guilty of a
misdemeanor.

The plaintiffs claim that Forestry had a statutory duty of care
under this statute, because it imposes a duty of care on any person
who "knows of a fire or sets a fire"on forested land "controlled"
by that person.  The plaintiffs claim that Forestry "controlled"
the land ravaged by the Miller's Reach Fire by virtue of its
control over the firefighting activities undertaken there.
          Alaska Statute 41.15.110(a) does not create a duty of
care on the part of Forestry.  The State is explicitly excluded
from liability under AS 41.15.110(a) under these circumstances by
another statute, AS 41.15.130, which provides that AS 41.15.110
does not apply to "the setting of a backfire"by State officials
who are authorized to suppress fires. [Fn. 13]  The Miller's Reach
Fire began as just such a backfire, set by Forestry employees, that
escaped and eventually destroyed the plaintiffs' property. 
Therefore, AS 41.15.110(a) explicitly does not apply to the State
under these circumstances, and cannot be the basis for a duty of
care.
               b.   11 AAC 95.400-.495 does not create a duty of
care.

          The plaintiffs do not argue that any administrative
regulations create a duty of care; however, Forestry raises the
possibility that 11 AAC 95.400-.495 could do so.  This section of
the Alaska Administrative Code, entitled "Forest Fire Protection,"
contains various regulations concerning fire protection and the
responsibilities of the State Department of Natural Resources.
          However, none of the provisions in this section can 
reasonably be construed to create a duty of care for Forestry. 
Instead, these regulations concern the procedure for granting
burning permits for permitted burns, [Fn. 14] the Department's
authority to close lands prone to fire on an emergency basis, [Fn.
15] the Department's responsibility to comply with state
environmental regulations, [Fn. 16] and requirements for saw
equipment used in forestry operations. [Fn. 17]
               c.   Forestry's internal rules and guidelines do
not create a duty of care.

          The plaintiffs do not explicitly argue that a duty of
care arises from Forestry's own internal rules and guidelines,
although they implicitly do so by arguing that Forestry was
negligent because it violated these rules and guidelines.
          In Estate of Day v. Willis, we held that an internal
administrative and training manual used by police did not impose on
the police a duty of care towards fleeing suspects. [Fn. 18] 
Similarly, in this case Forestry's internal rules and guidelines do
not create a duty of care for Forestry.
          2.   Forestry owed the plaintiffs a duty of care as a
matter of public policy.

          In the absence of a statutory duty of care, a duty may
also be imposed by public policy. [Fn. 19]
          It is well established that, when the State or a
subdivision of the State chooses to conduct firefighting
operations, it owes a duty of care to those whose lives and
property are threatened by the fire to conduct those operations
non-negligently.  In Adams v. City of Tenakee Springs, we affirmed
a jury verdict finding no negligence on the part of a city fire
department. [Fn. 20]  The jury was instructed that "once it takes
on a responsibility to have a fire fighting service, [the city]
must conduct the operation in a non-negligent manner."[Fn. 21]  In
City of Fairbanks v. Schaible, we considered a situation in which
a woman died in a fire because the City of Fairbanks fire
department negligently failed to save her. [Fn. 22]  In Schaible,
we found that the City of Fairbanks could be found liable for its
negligent firefighting. [Fn. 23]
          Therefore, when Forestry chose to take over the
firefighting operations in this case, it assumed a duty to conduct
those operations non-negligently.  It owed this duty of care to
those, including the plaintiffs, whose lives and property were
threatened by the fire. [Fn. 24]
     B.   The Plaintiffs' Claims Are Not Barred Under the Alaska
Tort Claims Act, AS 09.50.250.

          Under the Alaska Tort Claims Act, AS 09.50.250, the State
is immune from certain types of tort claims.  Specifically, the
State is immune from suit for claims "based upon the exercise or
performance or the failure to exercise or perform a discretionary
function or duty on the part of a state agency or an employee of
the state, whether or not the discretion involved is abused."[Fn.
25]
          In our recent decision in State, Department of
Transportation & Public Facilities v. Sanders, we discussed
"discretionary function"immunity under AS 09.50.250:
          In State v. Abbott, we recognized that the
term "discretionary"in AS 09.50.250 should not be interpreted
broadly to encompass all state actions involving discretion. 
Otherwise, there would be almost no limit to the State's immunity
because "almost any act, even driving a nail, involves some
'discretion.'"

               Instead, we identify "discretionary"acts
or functions by examining whether the act or function can be
described as "planning"or "operational." A planning decision is
one that involves policy formulation.  In contrast, an operational
decision involves policy execution or implementation.  Only acts or
functions occurring at the planning level are entitled to immunity
as discretionary functions under AS 09.50.250.

               Under the planning/operational test,
"liability is the rule, immunity the exception."[ [Fn. 26]]

So, the State is immune for discretionary functions that are
planning decisions involving policy formulation.  On the other
hand, there is no immunity for decisions that are merely
"operational": these include decisions that are executions or
implementations of policy already formulated.
          Our analysis is driven by the underlying policy of AS
09.50.250, which is to limit the courts' involvement in policy
questions best decided by the other branches of government. [Fn.
27]  This explains our abstention from interference with policy-
based "discretionary"functions.
          The superior court below held that all of the plaintiffs'
claims were barred under AS 09.50.250(1), and adopted the reasoning
of the oral ruling issued by Judge Cutler in the parallel Bartek v.
State action: that the State was immune because its actions all
involved "the balancing [of] a variety of social, economic and
policy factors." The superior court held that none of the actions
challenged by the plaintiffs involved non-immune operational
decisions made "at the fire truck"that would not be subject to
immunity.  However, the court refused to hold that all actions
undertaken in the course of firefighting would necessarily be
immune; rather, the superior court concluded that in the case
before it, all of the actions challenged by the plaintiffs were
discretionary and not operational.
          We will first address the argument made by Forestry that
all firefighting decisions are necessarily discretionary planning
decisions.  Because we reject Forestry's argument, we must also
consider the individual allegedly negligent decisions made by
Forestry, and whether under the circumstances these decisions were
"planning"or "operational"decisions.
          1.   Firefighting decisions are not necessarily
"discretionary"planning decisions subject to immunity under AS
09.50.250.

          Forestry's main argument, rejected by the superior court
below, is that all firefighting decisions are necessarily bound up
with policy formulation, and therefore all of Forestry's allegedly
negligent decisions are "discretionary"and subject to immunity
under AS 09.50.250.  Forestry argues that all tactical decisions
made at the scene of a fire involve policy formulation, because
firefighters necessarily balance competing economic, political, and
social considerations when making tactical decisions.  The essence
of Forestry's argument is contained in a single paragraph in its
brief:
          [Firefighters'] tactical decisions balance
policy factors that impact the course of the particular
suppression, the readiness for the next fire and the extent, and
the likely path of fire destruction.  For example, how and when
Forestry uses a local fire crew determines whether the crew will be
exhausted or available to respond to fight a structure fire.  The
decisions to use water . . . impact the calculus of fire risk for
persons near and far.

Forestry also states, more generally, that all firefighting
decisions made in the field have a "planning"component:
          Because of the volatility of fires, planning
and implementation are not distinct, but are intertwined and
compressed into the same decisions, made at the scene by
firefighters responding to what is imperfectly revealed to them as
the wildfire develops.

          Forestry argues that every firefighting decision is a
policy decision because each decision necessarily has an impact on
other fires and fire risks, and Forestry's ability to fight other
fires and protect other lands.  By quoting from Miller v. United
States, [Fn. 28] Forestry also implies that firefighting decisions
may also balance considerations of cost, public safety, and
resource damage.
          We reject this argument.  Forestry's argument is not
supported by the many authorities cited by Forestry.  First of all,
the text of the relevant sections of the Alaska Tort Claims Act
does not support the proposition that all firefighting activities
are "discretionary."[Fn. 29]  As the plaintiffs point out, the Act
does explicitly immunize some specific activities: quarantines and
activities involving the use of an ignition interlock device. [Fn.
30]  It also forecloses specific torts: assault, battery, false
imprisonment, false arrest, malicious prosecution, abuse of
process, libel, slander, misrepresentation, deceit, and
interference with contract rights.  However, there is no mention of
firefighting, or anything like firefighting. [Fn. 31]  Under the
principle expressio unius est exclusio alterius, courts presume
that a statute designating only certain things or acts excludes all
things or acts not designated. [Fn. 32]  Therefore, we conclude
that the legislature did not intend to immunize the entire class of
firefighting activities. [Fn. 33]
          Secondly, in our numerous decisions that have considered
"discretionary function"immunity, we have never held that an
entire class of decisions, such as those made in the course of
firefighting operations, are necessarily bound up with policy
considerations.  Instead, our analysis has in every case focused on
government decisions that under the circumstances of each case
either did or did not constitute planning and policy
considerations. [Fn. 34]  Indeed, in our most recent "discretionary
function"decision, we expressed skepticism that an entire class of
State actions could be inherently bound up with policy formulation:
"[W]hat qualifies as a matter of basic planning . . . often depends
more on the factual circumstances . . . than it does on the
actions' inherent nature."[Fn. 35]
          Instead, we have consistently held that, for all State
activities, the State's decision to engage in an activity is an
immune "planning"decision, while the decisions undertaken in
implementing the activity are operational, as long as the
implementation does not involve the consideration of policy
factors.  For example, in R.E. v. State, we considered a case in
which plaintiff parents brought suit against the State, Division of
Family and Youth Services for negligently licensing daycare
facilities in which the plaintiffs' children were abused. [Fn. 36] 
We held that the initial decision to create a licensing scheme was
an immune planning decision, but that the decisions undertaken in
implementing this policy, such as decisions to license and
relicense a particular facility, were operational decisions not
subject to immunity:
          [W]ithin the confines of [then] existing
policies and budgetary constraints, DFYS had the duty to exercise
due care in performing its functions.  Once DFYS formulated its
original policy, it was required to act within the confines of that
policy or be exposed to liability for failure to do so.[ [Fn. 37]]

In many other decisions, we have held that the State was immune for
policy decisions to engage in or allow an activity, but was not
immune for operational decisions undertaken in the course of
implementing that policy. [Fn. 38]
          Also, no authorities from other jurisdictions fully
support Forestry's claim that all firefighting activities should be
immune; and some jurisdictions have explicitly held that some
firefighting activities are operational.
          Decisions applying the Federal Tort Claims Act [Fn. 39]
also immunize "discretionary functions,"but apply a slightly
different test than the one we have used for the Alaska Tort Claims
Act.  Under the federal test, discretionary decisions are those
that are "susceptible to a policy analysis grounded in social,
economic, or political concerns."[Fn. 40]  None of the federal
decisions cited by Forestry applying this test support the
proposition that all firefighting activities are immune
"discretionary functions." Instead, in these decisions the courts
found that particular firefighting decisions, in particular
circumstances, involved policy determinations and were immune. [Fn.
41]  Indeed, one of these decisions explicitly stated that whether
the firefighting decision at issue involved policy formulation
depended on the particular circumstances. [Fn. 42]
          And decisions by other state courts do not support
Forestry's argument.  None of the state court cases cited by
Forestry are applicable, since they involved applications of tests
that differ significantly from our planning/operational test for
discretionary function immunity. [Fn. 43]  Also, two state court
decisions and one federal case applying Texas law have held that
some state or municipal firefighting decisions are planning
decisions, while others are operational decisions. [Fn. 44]
          In sum, we decline Forestry's invitation to declare that
all possible firefighting decisions made by the State are
necessarily policy-based planning decisions subject to immunity. 
This would be a radical step that is not consistent with our past
decisions or any other authorities.
          2.   On remand, Forestry's allegedly negligent acts must
be examined individually to determine if they are "planning"or
"operational"decisions.

          Because not all firefighting decisions made by Forestry
are automatically planning decisions subject to immunity, the
particular decisions in this case that are alleged to be negligent
must be examined to determine if they are "planning"decisions or
"operational"decisions.
          The plaintiffs claim that the following Forestry
decisions were negligent:
(1)       Forestry allowed its personnel to work at the fire site
while under the influence of alcohol and/or illegal drugs.

(2)       Forestry failed to conduct any firefighting activities at
all during the night of June 2-3.

(3)       Forestry's incident commander, as well as another
Forestry crew boss, failed to investigate the column of smoke
rising from the out-of-control burnout during the evening of June
3 while all Forestry personnel were away from the fire eating
dinner.

(4)       Forestry failed to construct a "fire line"around the
original sixty-acre fire.

(5)       Forestry used inadequate pumps, hoses, tanks, and water
supplies to fight the fire instead of using superior available
resources supplied by the local fire departments.

(6)       Forestry failed to conduct an adequate "mop-up"of the
original fire.

(7)       Forestry started burnouts in improper places and in an
improper manner and failed to control them (including the burnout
that spread out of control and created the Miller's Reach Fire).

(8)       Forestry failed to post lookouts around the original fire
(including, importantly, the evening of June 3, while the burnout
started by Forestry was burning out of control and all Forestry
employees were away from the fire eating dinner).

          The parties have not systematically addressed these
individual allegations in their briefs, [Fn. 45] and this case was
decided below on a Civil Rule 12(b)(6) motion, with no factual
development.  Based on the limited factual record before us, we
decline to decide whether each of these allegations concerns
"planning"decisions or "operational"actions.  On remand, the
superior court should permit the parties to conduct discovery, and
each of these allegations should be carefully considered in the
context of any further summary judgment proceedings.  The superior
court should make a separate determination for each of these
allegations following the principles announced in this opinion and
in our other decisions concerning discretionary function immunity.
          To provide additional guidance, we note that at least
some of the plaintiffs' allegations appear to concern non-immune,
"operational"actions.
          We agree with the Massachusetts Supreme Judicial Court,
which stated in Harry Stoller & Co. v. City of Lowell that "[t]here
are aspects of firefighting that can have an obvious planning or
policy basis."[Fn. 46]  Such aspects include the number and
location of fire stations, the amount of equipment to purchase, the
size of fire departments, and other aspects involving the
allocation of financial resources. [Fn. 47]  In addition, certain
on-the-scene firefighting tactical decisions may be considered
discretionary because they entail resource allocation decisions or
considered decisions of firefighting policy that are properly
vested in the officials in charge.  A decision whether or not to
use a backfire may be an example. [Fn. 48]  But not all conduct
implementing tactical decisions should necessarily be immune.
          As noted by the Massachusetts court, other firefighting
actions are clearly operational.  The court in Harry Stoller & Co.
noted that "governmental immunity does not result automatically
just because the governmental actor had discretion. Discretionary
actions and decisions that warrant immunity must be based on
considerations of public policy."[Fn. 49]  The Massachusetts court
held that the decision to use lower water pressure that rendered a
sprinkler system inoperable was a decision made at the operational
level, because it was one that "involved no policy choice or
planning decision."[Fn. 50]  Forestry's alleged failure to prevent
its employees from working under the influence of alcohol and
illegal drugs clearly cannot be viewed as a policy choice or
planning decision.  Moreover, although we are without the benefit
of a fully developed record, it is difficult to tell why certain
firefighting decisions made in the field, such as the alleged
failure to build a firewall, the failure to post lookouts to watch
the burnout during the June 3 dinner, or the failure to conduct an
adequate "mop-up,"should not be considered to be operational in
nature.
          The superior court will benefit from further factual
development of these allegations before determining if the
plaintiffs' allegations concern conduct that is "planning"or
"operational"in nature.
V.   CONCLUSION
          Because Forestry had a duty of care to fight the initial
fire in this appeal non-negligently, and because the plaintiffs
alleged at least some acts of operational negligence on the part of
Forestry, we REVERSE the dismissal below.  Because the superior
court's award of attorney's fees was based on that dismissal, that
award is also REVERSED.  We REMAND for further proceedings
consistent with this opinion.


                            FOOTNOTES


Footnote 1:

     See Caudle v. Mendel, 994 P.2d 372, 374 (Alaska 1999).


Footnote 2:

     Some Forestry employees also inquired about the column of
smoke with another Forestry crew boss, and this crew boss, like the
incident commander, also failed to investigate the column of smoke.


Footnote 3:

     "Spotting"refers to the phenomenon in which burning ashes and
cinders are injected into the air.  The fire "spots"when these
ashes and cinders start another fire outside the existing fire
perimeter.


Footnote 4:

     No. 3PA-98-247 CI.


Footnote 5:

     Bartek v. State, No. 3PA-98-247 CI (Alaska Super., February 9,
1999).


Footnote 6:

     See Guerrero v. Alaska Hous. Fin. Corp., 6 P.3d 250, 253
(Alaska 2000).


Footnote 7:

     Id.


Footnote 8:

     Linck v. Barokas & Martin, 667 P.2d 171, 173 (Alaska 1983).


Footnote 9:

     See Guerrero, 6 P.3d at 254.


Footnote 10:

     Kooly v. State, 958 P.2d 1106, 1108 (Alaska 1998); see also
Stephens v. State, Dep't of Revenue, 746 P.2d 908, 910 (Alaska
1987) ("Before we determine whether a statutory immunity applies to
a given case, we will determine whether the State would be liable
to the plaintiff in the absence of the immunity.").


Footnote 11:

     The superior court's decision can be affirmed on any basis
appearing in the record.  See Romann v. State, Dep't of Transp. &
Pub. Facilities, 991 P.2d 186, 190 n.10 (Alaska 1999).


Footnote 12:

     See Kooly, 958 P.2d at 1108.


Footnote 13:

     AS 41.15.130 states:

          Backfires excluded.  AS 41.15.010-41.15.170 do
not apply to the setting of a backfire under the direction of an
officer or employee of the United States or the state who is
authorized to prevent or suppress fires.


Footnote 14:

     See 11 AAC 95.410-.440; 11 AAC 95.490.


Footnote 15:

     See 11 AAC 95.450-.460.


Footnote 16:

     See 11 AAC 95.470.


Footnote 17:

     See 11 AAC 95.480.


Footnote 18:

     897 P.2d 78 (Alaska 1995).  In Estate of Day we stated:

          The Estate had asserted in Day I that a source
of duty could be derived from the defendants' internal
administrative and training manual entitled "Police and Fire, State
of Alaska."  The court held that even assuming these materials
were admissible as evidence of a standard of care, they did not
provide a basis for a source of a legal duty.  We agree.

Id. at 81 n.7.


Footnote 19:

     See Kooly v. State, 958 P.2d 1106, 1108 (Alaska 1998).


Footnote 20:

     963 P.2d 1047 (Alaska 1998).


Footnote 21:

     Id. at 1049.


Footnote 22:

     375 P.2d 201 (Alaska 1962) (finding city liable for negligent
firefighting but applying rule only prospectively), overruled in
part by Scheele v. City of Anchorage, 385 P.2d 582, 583 (Alaska
1963) (applying rule retrospectively), superseded by AS 09.65.070
(governing municipal firefighting liability); see Gates v. City of
Tenakee Springs, 822 P.2d 455, 458 (Alaska 1991).


Footnote 23:

     See 375 P.2d at 209-11.


Footnote 24:

     This conclusion is consistent with our other decisions holding
that once the State undertakes to provide a service, it assumes the
duty to provide that service non-negligently.  See R.E. v. State,
878 P.2d 1341, 1347-48 (Alaska 1994) (holding that, having
undertaken the responsibility of inspecting and licensing daycare
facilities, the State had a duty to do so non-negligently, where
plaintiffs' children were abused by a daycare facility licensed by
the State); City of Kotzebue v. McLean, 702 P.2d 1309, 1313-14
(Alaska 1985) (holding that, because the city undertook to provide
police protection, it assumed the duty to provide protection non-
negligently -- to take reasonable care to protect the victim of a
threatened attack); Williams v. Municipality of Anchorage, 633 P.2d
248, 251 (Alaska 1981) (holding that, having undertaken to provide
and install the ladder at a municipality dock, the municipality had
a duty to exercise reasonable care to provide for the safety of
those using it); Adams v. State, 555 P.2d 235, 240-241 (Alaska
1976) (holding that, having undertaken to carry out fire code
inspections, the State had a duty of reasonable care to carry them
out and enforce fire regulations non-negligently).


Footnote 25:

     AS 09.50.250(1).


Footnote 26:

     944 P.2d 453, 456 (Alaska 1997) (internal citations omitted).


Footnote 27:

     We stated in Sanders:

          The test focuses on the policy behind the
discretionary immunity doctrine for guidance in determining whether
a given act should receive immunity.  "The policy underlying
immunity is the necessity for 'judicial abstention in certain
policy-making areas that have been committed to other branches of
government.'" "This policy in turn is based upon notions of
separation of powers, and limitations on this court's ability to
reexamine the questioned decision and the considerations that
entered into it." 

Id. at 456-57 (internal citations omitted). 


Footnote 28:

     163 F.3d 591, 595 (9th Cir. 1998) ("[T]he Forest Service's
decision regarding how to attack a fire involved a balancing of
considerations, including cost, public safety, firefighter safety,
and resource damage.").


Footnote 29:

     See AS 09.50.250.


Footnote 30:

     See AS 09.50.250(2), (4).


Footnote 31:

     See AS 09.50.250.


Footnote 32:

     See Boudette v. Barnett, 923 F.2d 754, 756-57 (9th Cir. 1991);
2A Norman J. Singer, Sutherland Statutory Construction sec.
47:23,304
(6th ed. 2000).  This principle applies when the statute does not
also have a general term.


Footnote 33:

     Other states have explicitly made some or all firefighting
activities immune by statute.  See Cal. Govt. Code sec. 850.4 (West
1995); Kan. Stat. Ann. sec. 75-6104(n) (2000); Okla. Stat. tit. 51,
sec.
155(6) (2000).  The Alaska legislature has not done so.


Footnote 34:

     See Guerrero v. Alaska Hous. Fin. Corp., 6 P.3d 250, 261-62
(Alaska 2000) (reversing finding of immunity because it was
possible that the State's allegedly negligent design of housing
project involved operational decisions); Brady v. State, 965 P.2d
1, 16-17 (Alaska 1998) (finding immunity for State's forest
management decisions in response to a beetle epidemic because these
decisions simply translated basic directives from the Alaska
statutes into policies); Adams v. City of Tenakee Springs, 963 P.2d
1047, 1050-51 (Alaska 1998) (fire department staffing decisions
were planning decisions because they were fundamentally "resource
allocation"decisions; State v. Sanders, 944 P.2d 453, 459-60
(Alaska 1997) (decision to allow airport vehicles on a road was
planning decision; decisions implementing this policy were
operational decisions); Estate of Arrowwood v. State, 894 P.2d 642,
645-46 (Alaska 1995) (State's decision not to close a highway in
icy conditions involved balancing of policy considerations); R.E.
v. State, 878 P.2d 1341, 1348-50 (Alaska 1994) (decision to license
daycare facilities involved policy considerations, but
implementation decisions within confines of existing policies were
operational); Morry v. State, 872 P.2d 1209, 1211-13 (Alaska 1994)
(decision to enact regulations involved policy considerations
because Alaska statutes authorizing regulations explicitly vested
regulatory agency with discretionary policymaking authority); Gates
v. City of Tenakee Springs, 822 P.2d 455, 459 (Alaska 1991)
(decision by city to move landowner's fence on public right-of-way
was planning decision; decision of how to move the fence was
operational decision; Owsichek v. State, Guide Licensing & Control
Bd., 763 P.2d 488, 498-99 (Alaska 1988) (decisions made under
administrative "exclusive guide area"program involved policy
considerations because program vested administrative agency with
policymaking powers, which were used by agency to create "exclusive
guide areas"in a "major policy initiative"); Aspen Exploration
Corp. v. Sheffield, 739 P.2d 150, 156 (Alaska 1987) (governor's
supervisory acts involved fundamental policy determinations);
Division of Corrections, Dep't of Health & Soc. Servs. v. Neakok,
721 P.2d 1121, 1133-34 (Alaska 1986) (day-to-day decisions made by
parole officers in the course of formulating parole plans and
supervising parolees were operational); Freeman v. State, 705 P.2d
918, 919 (Alaska 1985) (decision not to institute dust-control
measures on highway was a policy decision); Plancich v. State, 693
P.2d 855, 857-58 (Alaska 1985) (decision to build public seaplane
dock was planning decision, but day-to-day operations decisions
were operational); Earth Movers of Fairbanks, Inc. v. State, 691
P.2d 281, 283-84 (Alaska 1984) (state trooper's good faith
determination of his authority was "discretionary function");
Industrial Indemn. Co. v. State, 669 P.2d 561, 563-65 (Alaska 1983)
(decision not to build guardrail on highway was planning decision);
Rapp v. State, 648 P.2d 110, 110 (Alaska 1982) (decision to install
stop sign instead of traffic signal at intersection was planning
decision); Moloso v. State, 644 P.2d 205, 218-19 (Alaska 1982)
(decision to reroute highway was planning decision; implementation
decisions were operational); Wainscott v. State, 642 P.2d 1355,
1357 (Alaska 1982) (decision to install flashing traffic light
instead of traffic signal at intersection was planning decision);
Johnson v. State, 636 P.2d 47, 65-66 (Alaska 1981) (decision to
build railroad crossing was planning decision; implementation
decisions were operational); Japan Air Lines Co., Ltd. v. State,
628 P.2d 934, 937-38 (Alaska 1981) (design decisions concerning
taxiway at airport were operational because "broad policy factors"
were not concerned); Urethane Specialities, Inc. v. City of Valdez,
620 P.2d 683, 688-89 (Alaska 1980) (decision to issue consumer
warning was planning decision; decision as to content of warning
was operational; Carlson v. State, 598 P.2d 969, 973 (Alaska 1979)
(decision to maintain highway turnout was planning decision;
however, maintenance decisions were operational); Jennings v.
State, 566 P.2d 1304, 1311-12 (Alaska 1977) (street design and
safety measures decisions were discretionary); Wallace v. State,
557 P.2d 1120, 1124 (Alaska 1976) (decision to inspect construction
site was planning decision; decisions carrying out inspection were
operational); Adams v. State, 555 P.2d 235, 243-44 (Alaska 1976)
(decision to inspect for fire code violations was planning
decision; decisions implementing inspection were operational);
State v. I'Anson, 529 P.2d 188, 193-94 (Alaska 1974) (decisions
concerning striping and signage on highway were operational); State
v. Stanley, 506 P.2d 1284, 1291 (Alaska 1973) (decision to seize
fishing boat was planning decision; decisions implementing seizure
were operational); State v. Abbott, 498 P.2d 712, 722 (Alaska 1972)
(decision to maintain highway during winter was planning decision;
decisions implementing maintenance were operational).


Footnote 35:

     Guerrero, 6 P.3d at 261-62.


Footnote 36:

     878 P.2d 1341 (Alaska 1994).


Footnote 37:

     Id. at 1349-50 (internal quotations, citations, and emphasis
omitted).


Footnote 38:

     See Sanders, 944 P.2d at 459 (decision to allow airport
vehicles on a road was planning decision; decisions implementing
this policy were operational decisions); Gates, 822 P.2d at 459
(decision to move fence was planning decision; decision on how to
move the fence was operational); Neakok, 721 P.2d at 1133-34 
(parole board's decisions formulating policy were planning
decisions; day-to-day decisions made by parole officers in the
course of formulating parole plans and supervising parolees were
operational); Freeman, 705 P.2d at 919 (decision to maintain 
highway for public use was planning decision; implementation
decision not to institute dust-control measures on highway was a
policy decision because it involved consideration of "basic policy
factors"); Plancich, 693 P.2d at 858 (decision to build public
seaplane dock was planning decision, but day-to-day operations
decisions were operational); Moloso, 644 P.2d at 218-19 (decision
to reroute highway was planning decision; implementation decisions
were operational); Johnson, 636 P.2d at 65-66 (decision to build
railroad crossing was planning decision; implementation decisions
were operational); Japan Air Lines, 628 P.2d at 937-38 ("basic
policy decision"to build taxiway at airport was planning decision;
design decisions concerning taxiway at airport were operational
because "broad policy factors"were not concerned); Urethane
Specialities, Inc., 620 P.2d at 688-89 (decision to issue consumer
warning was planning decision; decision as to content of warning
was operational); Carlson, 598 P.2d at 973 (decision to maintain
highway turnout was planning decision; however, maintenance
decisions were operational); Wallace, 557 P.2d at 1124 (decision to
inspect construction site was planning decision; decisions carrying
out inspection were operational); Adams, 555 P.2d at 243-44
(decision to inspect for fire code violations was planning
decision; decisions implementing inspection were operational);
Stanley, 506 P.2d at 1291 (decision to seize fishing boat was
planning decision; decisions implementing seizure were
operational); Abbott, 498 P.2d at 722 (decision to maintain highway
during winter was planning decision; decisions implementing
maintenance were operational).


Footnote 39:

     See 28 U.S.C. sec.sec. 2671-80 (2000).


Footnote 40:

     Miller v. U.S., 163 F.3d 591, 595 (9th Cir. 1988).


Footnote 41:

     See Kelly v. U.S., 241 F.3d 755, 759-64 (9th Cir. 2001)
(specific training decision for contract pilots used in
firefighting is discretionary policy decision because it
necessarily implicated competing policy considerations); Miller,
163 F.3d at 595-96 (where Forest Service had multiple fires in the
same area to fight, firefighting strategy choices were
discretionary because "competition for resources"required
balancing of costs, minimizing resource damage, and protecting
private property); Parsons v. U.S., 811 F. Supp. 1411, 1414-21
(E.D. Cal. 1992) (same, multiple fires); Defrees v. U.S., 738 F.
Supp. 380, 384-85 (D. Or. 1990) (same, multiple fires); Thune v.
U.S., 872 F. Supp. 921, 924-25 (D. Wyo. 1995) (where Forest Service
was forced to fight fire started as controlled burn, testimony
indicated that firefighting decisions were discretionary because
they were "the result of developed strategies and policies"); Pope
& Talbot, Inc. v. Department of Agric., 782 F. Supp. 1460, 1465-67
(D. Or. 1991) (forest closure decisions before fire season are
discretionary policy decisions because these decisions involved
weighing of costs and benefits).


Footnote 42:

     See Defrees, 738 F. Supp. at 384-85 (interpreting Rayonier v.
U.S., 352 U.S. 315 (1957)).


Footnote 43:

     See Biloon's Elec. Serv., Inc. v. City of Wilmington, 401 A.2d
636, 643-44 (Del. Super. 1979) (refusing to apply any "arbitrary"
planning/operational distinction, but stating that firefighting
decisions based on policy considerations are immune);  Wright v.
State of Florida, 540 So. 2d 830, 831 (Fla. App. 1988) (finding no
duty of care for firefighting; immunity not discussed); Chandler
Supply Co. v. City of Boise, 660 P.2d 1323, 1328-29 (Idaho 1983)
(granting immunity for both operational and planning decisions
"necessary to the performance of traditional governmental
functions"), reversed by Sterling v. Bloom, 723 P.2d 755 (Idaho
1986) (adopting planning/operational test), both cases superseded
by Idaho Code sec. 6-904A (1988); City of Hammond v. Cataldi, 449
N.E.2d 1184, 1186-87 (Ind. App. 1983) (applying "discretionary/
ministerial"test that grants immunity if the decision is merely
discretionary), modified by Peavler v. Monroe County Bd. of
Comm'rs, 528 N.E.2d 40, 46 (Ind. 1988) (abandoning discretionary/
ministerial test and adopting planning/operational test); Harland
Enters., Inc. v. Commander Oil Corp., 475 N.E.2d 104, 105 (N.Y.
1984) (immunizing firefighting because it is a discretionary
"governmental function").  Another case, Frankfort Variety, Inc. v.
City of Frankfort, 552 S.W.2d 653, 655 (Ky. 1977) appeared to
immunize firefighting under theory of generalized duty to public;
however, this decision was overruled by Gas Serv. Co., Inc. v. City
of London, 687 S.W.2d 144 (Ky. 1985).


Footnote 44:

     See Hill v. City of Houston, 991 F. Supp. 847, 852-53 (S.D.
Tex. 1998) (using version of planning/operational test for
municipal immunity, holding that "negligent implementation"of fire
department firefighting policies is not discretionary; applying
Texas law);  Harry Stoller & Co. v. City of Lowell, 587 N.E.2d 780,
785 (Mass. 1992) (using planning/operational test for municipal
immunity, holding that firefighting decisions concerning allocation
of resources are planning decisions; tactical decisions are
operational decisions); Invest Cast, Inc. v. City of Blaine, 471
N.W.2d 368, 370-71 (Minn. App. 1991) (holding that initial
firefighting deployment decisions are planning decisions; tactical
decisions concerning "how the firefighter personnel actually fight
the fire"are operational decisions).


Footnote 45:

     Forestry concentrates its argument on the general proposition
that all tactical firefighting decisions are planning decisions. 
The plaintiffs do list most of the decisions mentioned above and
assert that they are operational, but do not systematically and
separately discuss each of the decisions.


Footnote 46:

     587 N.E.2d 780, 785 (Mass. 1992).


Footnote 47:

     See id.; see also Adams v. City of Tenakee Springs, 963 P.2d
1047, 1050-51 (Alaska 1998) (fire department staffing decisions
were planning decisions because they were fundamentally "resource
allocation"decisions).  The decisions cited in footnotes  38 and
41, supra, also cast light on the dividing line between
discretionary and nondiscretionary decisions in a firefighting
context.


Footnote 48:

     See AS 41.15.130 (exempting backfires authorized by state
officials from statutes regulating forest fires).


Footnote 49:

     587 N.E.2d at 785.


Footnote 50:

     Id. at 784.