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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Joseph M. Jackovich Revocable Trust v. State, Dept. of Transportation (9/6/2002) sp-5625

Joseph M. Jackovich Revocable Trust v. State, Dept. of Transportation (9/6/2002) sp-5625

     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,


TRUST, DOLORES M. JACKOVICH        )    Supreme Court No. S-9686
JOHN J. LOUNSBURY, GERALDINE  )    Superior Court No.
S. LOUNSBURY, and HAMAN       )    4FA-97-2320 CI
                                   )    O P I N I O N
             Appellants,           )
                                    )    [No. 5625 - September 6,
     v.                            )
             Appellee.                  )

          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Charles R. Pengilly, Judge.

          Appearances:  Edward R. Niewohner,  Niewohner
          &    Associates,    P.C.,   Fairbanks,    for
          Appellants.  Mason Damrau, Assistant Attorney
          General,  Fairbanks, and  Bruce  M.  Botelho,
          Attorney General, Juneau, for Appellee.

          Before:   Fabe,   Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          EASTAUGH, Justice.


           Owners  of  improved real properties asserted  inverse

condemnation claims against the State of Alaska, complaining that

information the state published about its intentions  to  acquire

land  needed  for a projected road project deprived them  of  the

full use and enjoyment of their properties, reduced the value  of

their properties, and constituted de facto takings.  The superior

court  dismissed  their claims on summary judgment.   We  affirm.

Taking  all  permissible  factual  inferences  in  favor  of  the

landowners, we conclude that the state did not publicly  announce

a  concrete intention to use or condemn specific parcels  of  the

owners'  properties  or  engage in  activity  that  substantially

interfered with the use and enjoyment of their properties.


     A.   The Illinois Street Project

           The  Illinois Street project is a component of a major

highway  construction  project called the  Geist  Road  Extension

Project,  begun  in  Fairbanks in the  mid-1970s.   The  Illinois

Street component, if it is to be built at all, will be the  final

segment   built  in  the  Geist  Road  Extension  Project.    The

landowners  involved  in  this appeal  own  parcels  of  improved

commercial property along Illinois Street in downtown Fairbanks.1

We   sometimes  refer  to  them  collectively  as  the  Jackovich


           In  1977 the Federal Highway Administration authorized

the  Alaska  Department  of Transportation  (DOT)  to  begin  the

location  phase  of  the Geist Road Extension  Project.   Initial

engineering  and environmental impact studies were  completed  in

1983.   Public  hearings concerning the location of  the  project

were  held  in 1983.  DOT received federal location  approval  by

1985.   The project was undertaken in segments, several of  which

were completed in the late 1980s and early 1990s.  The design for

the  Illinois  Street portion of the project was revised  several

times between 1985 and 2000.  The plans have contemplated a range

of  three-,  four-,  and six-lane highway designs.   The  initial

location approval contemplated that the Illinois Street connector

would be constructed as part of the Aurora Subdivision-to-Lementa

Subdivision  segment;  but this segment  was  completed  in  1991

without   the  Illinois  Street  connector.   Unforeseen   design

complications  caused DOT to abandon this plan and ultimately  to

adopt  the  plan,  known  as  the Illinois  Street/Minnie  Street

connector  plan,  that  is involved in this  dispute.   No  final

design  had  been  approved  as of February  1,  2000,  when  the

superior  court  heard  argument  on  cross-motions  for  summary

judgment in this lawsuit.

           Throughout  the phases of the Geist Road and  Illinois

Street  projects, DOT made efforts to notify the  landowners  and

the  public  of  the  progress of the projects,  as  federal  law

required.   These  efforts  included issuing  notices  of  public

hearings,  workshops, and local government hearings and meetings,

and  publishing the Statewide Transportation Improvement Program.

DOT  also developed a mailing list which included individuals and

businesses  who  owned  or  occupied property  near  the  highway

corridor.  The landowners in this case were on this mailing  list

and  received  several  installments of  DOT's  "Illinois  Street

Newsletter."  For example, the January 1993 Newsletter stated:

                    Right-of-Way Begins Soon
          The  Federal funds are set aside and will  be
          obligated  this  year  for  the  right-of-way
          acquisition along Illinois Street.  The right-
          of-way  phase  should take approximately  two
          years to complete.
           One  of the landowners, John Lounsbury, wrote  DOT  in

April 1997 asking the state to execute an advance acquisition  of

his  property.  DOT declined, even though in 1993 it had acquired

the  Rose  Building, which was located in the  vicinity  and  was

projected to be within the scope of the Illinois Street right-of-


     B.   The Inverse Condemnation Suit

           In  November  1997 the landowners filed their  inverse

condemnation  complaint  against the  state,  alleging  de  facto

takings  of  and  damage  to their properties.2  They  moved  for

partial summary judgment, arguing that no material facts were  in

dispute  as to their claim that DOT's pre-condemnation  publicity

had  reduced the economic value of their properties and  required

just  compensation.  In support of their motion,  the  landowners

submitted  evidence of lost property value, public  announcements

of  the  Illinois Street project, and the state's acquisition  of

the  Rose  Building.  DOT opposed the motion and cross-moved  for

summary judgment.

          In support of DOT's opposition and motion, John Miller,

DOT's  Chief  Right-of-Way agent in Fairbanks at relevant  times,

swore   in  an  affidavit  that  "DOT  has  never  announced   an

unequivocal  intention  to acquire any  of  the  particular  real

properties   along  Illinois  Street."   DOT  argued   that   the

landowners' claims failed because the landowners did not  provide

evidence of DOT's intent to condemn their specific properties and

did not rebut Miller's statement.

           At  oral  argument  on  the  motions,  the  landowners

attempted to supplement their exhibits with copies of letters DOT

wrote  the landowners addressing the future acquisition of  their

specific  properties.   The state objected to  introducing  these

supplemental  exhibits.  The superior court ruled that  it  would

not  consider  the  exhibits unless an  appropriate  motion  were

filed.   The landowners never filed a motion asking the court  to

accept the exhibits.

          In March 2000 the superior court denied the landowners'

motion  for summary judgment and granted the state's cross-motion

for   summary  judgment.   The  court  first  reasoned  that  the

publicity  complained  of could not be considered  a  "de  facto"

taking because it did not amount to either a physical invasion of

property  or  a  direct legal restraint on its  use.   The  court

further reasoned that the "condemnation blight" doctrine did  not

apply because the property was never actually condemned.3

           The  superior  court then ruled  that  the  claim  was

properly  evaluated  under  precedents  establishing  an  inverse

condemnation  cause  of action based solely  on  pre-condemnation

publicity.4   The  court concluded that the Jackovich  landowners

could not establish an essential element of this cause of action:

proof  of  a public statement of the state's "concrete" intention

to  acquire  specific property.5  The court determined  that  the

landowners'   claims  "contain  no  allegation  of   any   public

expression  of intent to use a specific piece of property."   The

court  concluded  by  reasoning that  this  requirement  properly

accommodated  the  public  interest in community  planning  while

protecting   the  landowners'  constitutional   right   to   just


           The  landowners moved for reconsideration and attached

the  disputed  supplemental  exhibits  to  their  reconsideration

motion.   The superior court denied their reconsideration motion.

It  appears  that  as of April 4, 2000, when the  superior  court

entered  final judgment, the state had commenced no  condemnation

proceedings for any of these particular properties.

          The landowners appeal.


            The   landowners  advance  alternative  theories   of

recovery.   First, they argue that existing Alaska  law  requires

that  property owners be compensated when government  publication

of  an "unequivocal intent" to appropriate their property damages

them, even when their property is not ultimately condemned.  They

further  argue  that  the publicity in this case  satisfies  this

intent  standard.   Second, they argue that they  should  recover

under  the  case-specific  analysis  we  use  to  decide  whether

government action that does not constitute a "per se"  taking  is

nonetheless a compensable taking.

           As  to  the first issue, we conclude that the superior

court  correctly determined that the publicity in this case  does

not satisfy the "concrete intention" test.  As to the second,  we

conclude that the case-specific approach is inapplicable  because

the   existing   pre-condemnation  publicity  cause   of   action

adequately  addresses the problems at hand.  We further  conclude

that  the  case-specific  approach  is  inapplicable  where   the

challenged government action does not directly limit the property

owner's use or exclusive control of her property.

     A.   Standard of Review

          We review grants of summary judgment de novo.6  Summary

judgment  should  be affirmed if there are no genuine  issues  of

material fact and the moving party is entitled to judgment  as  a

matter  of  law.7  We read the record in the light most favorable

to   the   non-moving  party  and  draw  all  reasonable  factual

inferences  in  his  or  her  favor.8   We  review  questions  of

constitutional  law, such as whether a taking  has  occurred,  de

novo.9  We will adopt the rule of law that is most persuasive  in

light of precedent, reason, and policy.10

          Thus, in reviewing the superior court's conclusion that

the  state  had no concrete intention to condemn the  landowners'

properties, we draw all reasonably permissible factual inferences

in  favor of the landowners, the opponents of the state's  cross-

motion for summary judgment.

     B.   It  Was  Not  Error To Dismiss the Landowners'  Inverse

          Condemnation Claim on Summary Judgment.

          1.   Landowners' Ehrlander/Lange/Homeward Bound theory

           The  landowners' main argument on appeal is that under

existing  Alaska law, the state is constitutionally  required  to

compensate  them  because, by publishing  an  "unequivocal"  pre-

condemnation intent to appropriate their properties, it  deprived

them  of the economic advantages of ownership.  They rely on  two

Alaska cases - Ehrlander v. State, Department of Transportation,11

and Homeward Bound, Inc. v. Anchorage School District12 - as well

as  a  Washington case - Lange v. State13 -  which we approvingly

discussed in Ehrlander.14

           Before discussing the legal issues presented, we  note

the  factual posture of this case.  It involves the state's  pre-

condemnation  publication  of notices,  information,  plans,  and

proposals  pertaining  to  a road improvement  project  component

that,  as of the time the parties sought summary judgment,  might

or might not be built.  This component of the overall project had

not became final, and its scope was uncertain.  Its impact on the

landowners'   parcels  was  consequently   uncertain,   and   the

publications  attributed to the state reflect  this  uncertainty.

Likewise,  there was uncertainty about what specific  parcels  or

portions  thereof  might be acquired.  We also  note  that  these

properties were improved with commercial buildings and that there

is  no evidence the state actively interfered with the beneficial

use  of  these  properties  by  (1) limiting  their  development,

improvement, or occupancy; (2) denying the landowners any permits

needed  to  develop,  improve,  or  use  these  properties;   (3)

notifying  tenants  they  would  have  to  vacate  or  would   be

compensated  for vacating; or (4) informing the  owners  that  in

event  of  condemnation,  they  would  not  be  compensated   for

maintaining or improving their properties.  Instead,  the  common

thread in the landowners' superior court affidavits is that  they

are  unable  to sell their properties and that they  lost  rental

income  because pre-condemnation announcements discouraged buyers

and  renters  and  made improvements infeasible  or  economically


          The Alaska Constitution provides that "private property

shall  not  be  taken  or  damaged for public  use  without  just

compensation."15   "Private property  is  taken  or  damaged  for

constitutional purposes if the government deprives the  owner  of

the  economic advantages of ownership."16  "Once private property

is  taken or damaged, the owner is entitled to be placed  in  the

same  position as he would have occupied absent the  governmental


           We  have held that under some circumstances landowners

may  be  entitled to compensation from government entities  whose

activities diminish the value of their properties even though the

government  never  actually condemns the  properties.   Thus,  in

Homeward Bound, we stated:

          [I]n cases such as this one where the alleged
          taking  is based on precondemnation decisions
          concerning   the   subject   property,    the
          objective  manifestations of the government's
          intention  to take the property are  critical
          to  the  decision whether there was a taking.
          This  is because the government's indications
          of  its intention to condemn the property are
          the source of the owner's claimed damages.[18]
           Homeward Bound claimed that the municipality  and  the

school  district had inversely condemned its unimproved  property

by  designating  it  as  a  potential  school  site,  temporarily

diminishing its value.19  In discussing cases "where the  alleged

taking  is  based  on  precondemnation decisions  concerning  the

subject  property," we referred in Homeward Bound  to  California

law,  originating in Klopping v. City of Whittier,20  that allows

landowners  to recover for loss in the value of their  properties

due  to  governmental pre-condemnation activity.  The  California

Supreme Court held in Klopping:

          [A]  condemnee  must  be  provided  with  the
          opportunity  to  demonstrate  that  (1)   the
          public  authority acted improperly either  by
          unreasonably  delaying eminent domain  action
          following   an  announcement  of  intent   to
          condemn  or  by  other  unreasonable  conduct
          prior to condemnation; and (2) as a result of
          such action the property in question suffered
          a diminution in market value.[21]
           We  then  held in Homeward Bound that to  recover  for

damages  caused by pre-condemnation governmental activities  that

do not otherwise amount to a de facto taking, an Alaska plaintiff

must  show  a  concrete  indication that the  state  intended  to

condemn  the  property.22  Approvingly citing one  of  Klopping's

early progeny, we explained:

          Later,  in Selby Realty, Co. v. City  of  San
          Buenaventura, the [California Supreme  Court]
          held  that  the mere enactment of  a  general
          plan   showing  proposed  streets   extending
          through private property did not constitute a
          taking because there was "no present concrete
          indication that the county either intends  to
          use  plaintiff's  property for  the  proposed
          streets  or  that it intends to  acquire  the
          property   by   condemnation."    The   court
          distinguished  Klopping on  the  ground  that
          "the  adoption of a general plan  is  several
          leagues  short  of a firm declaration  of  an
          intention to condemn property."[23]
           In considering the claims of the Jackovich landowners,

the  superior court characterized Alaska takings law as requiring

"a  public statement of `concrete' intention to acquire  specific

property before a Klopping claim will lie."24  Applying this rule,

the  superior  court dismissed the landowners' claim  on  summary

judgment.   It concluded that "even Klopping - the most expansive

holding  this  court  has  been able  to  identify  in  terms  of

affording  compensation to disadvantaged property owners  -  does

not  reach  the  facts  of  the present case,  which  contain  no

allegation  of any public expression of intent to use a  specific

piece of property."

           The  Jackovich  landowners do  not  ask  us  to  adopt

Klopping,  which they say may have adopted a requirement  -  that

the  government  have  acted improperly  -  that  is  foreign  to

established  inverse condemnation law in Alaska.25  They  instead

assert  that  in  Ehrlander  we  adopted  a  broad  doctrine   of

compensability  by  relying  on  principles  discussed   by   the

Washington  Supreme  Court in Lange v.  State.26   Our  Ehrlander

opinion  approvingly discussed as follows the  reasoning  of  the

Washington court in Lange:

          In   our   view  this  reasoning  should   be
          applicable  not  merely when  a  condemnation
          action  is  formally begun,  but  whenever  a
          property  owner is, by reason of an impending
          condemnation,   deprived  of   the   economic
          advantage   of  ownership.   That   was   the
          rationale of the Washington court in Lange:
               Once   the  state  manifested   its
               unequivocal  intent to  appropriate
               the Lange property, appellants were
               precluded  from  exercising   their
               business  judgment and selling  the
               property  before  the  market  fell
               further.  Moreover, appellants were
               precluded from taking any steps  to
               counteract  the market  decline  by
               making improvements on the land  or
               otherwise  changing its use.   Thus
               appellants  were  deprived  of  the
               most    important   incidents    of
               ownership,  the rights to  use  and
               alienate property.
          547  P.2d  at 288.  We thus agree with  Lange
          and  believe  that  its  holding  should   be
          applicable here.  As the Lange test does  not
          require either extraordinary delay or  a  bad
          faith  motive  to  depress land  prices,  the
          state's  argument that the absence  of  these
          factors means that Ehrlander has not  made  a
          prima  facie  case of an imputed taking  must
            Ehrlander,  like  Lange,  asserted  claims  that  the

government  engaged in pre-condemnation activity that caused  his

unimproved  real  property to decline in value before  the  state

began  condemnation proceedings to acquire the  land.   Ehrlander

claimed  that  the  state's unreasonable delay  in  bringing  the

condemnation proceedings after it announced its intention to  use

his property for a highway project resulted in an imputed taking.28

The  superior court granted summary judgment to the state because

the  state did not unreasonably delay or have a bad faith  motive

to depress land prices.  Holding that those were not requirements

for   a   claim  under  Lange,  we  reversed  and  remanded   for

consideration  of  Ehrlander's  imputed  taking  claim  and   for

application of the four-element test set out in Lange.29

           Lange  filed his inverse condemnation claim about  one

year  before the state filed an eminent domain action to  acquire

land  he  had  purchased to develop and sell.30   The  Washington

Supreme Court applied a four-element test to decide in the formal

condemnation proceeding whether to advance the date of valuation.31

Lange  is properly regarded, like Ehrlander, as an example of  an

early valuation eminent domain case.

          The four-element Lange test does not expressly apply to

or encompass the claims of the Jackovich landowners.  Rather than

trying to advance the date of taking for valuation purposes where

it  is undisputed that the state has taken the property, they are

trying  to  establish that there was a taking; it is  the  taking

that  is  disputed,  not  the date when  it  occurred.   And  the

Jackovich  landowners do not hold unimproved property which  they

had  acquired  to  develop and sell; their  property  was  income

producing  and  continued  to produce at  least  some  income  at

pertinent  times.  If the state cancels the Illinois Street  part

of  the  project without acquiring their properties, the prospect

of  condemnation will no longer arguably affect the income  their

properties generate.  On its face, the Lange test does not appear

to  apply to an inverse condemnation claim where the state  never

aquires the property.32

           Nonetheless, we recognized in Homeward Bound that pre-

condemnation governmental activity could in theory  amount  to  a

temporary taking that would entitle an owner to compensation even

if the plan to condemn were abandoned.33  One can imagine that pre-

condemnation  publicity  could depress income  actually  realized

from  improved commercial property, leading to a temporary taking

that  requires  compensation.  But it  is  not  so  obvious  what

standards  should be applied to such a claim.  How long  must  an

owner  endure  such  publicity before it  becomes  a  compensable

temporary taking?   What decline in value is large enough  to  be

cognizable?   Our decisions do not answer those questions.

          We do not need to explore those issues here, nor others

that  may  arise  from permitting an inverse  condemnation  claim

based  on  pre-condemnation publicity  where  no  eminent  domain

condemnation has yet occurred and may never occur.  We think that

at  a  minimum in such a case, the government must have  publicly

announced  a  present intention to condemn specific properties,34

and  it  must  have done something that substantially  interferes

with  the  landowners' use and enjoyment of  their  properties.35

These  minimal requirements present two insurmountable  obstacles

to  the claims of the Jackovich landowners in this case as it  is

presented to us.

               a.   DOT has not expressed a present concrete intention to
                    acquire any specific property.
           First,  the public announcements attributable  to  the

state,  even  taking all permissible factual  inferences  in  the

landowners'  favor, fall short of permitting a finding  that  DOT

expressed  a  present  concrete  intention  to  condemn  specific

property.  The landowners argue that the superior court erred  in

reaching  this  conclusion.  They point to maps  and  newsletters

identifying  their properties as land to be condemned  under  the

Illinois  Street  project.  They refer to the  January  1993  DOT

Newsletter  passage we quoted above in Part II.A.  The landowners

also point to correspondence, contained in supplemental exhibits,

discussing  the  possibility of condemnation.   The  supplemental

exhibits  included letters from DOT to the landowners  addressing

future  acquisition  of  their specific properties.   One  letter

stated  that  "a  portion of your property will be  required  for

additional right-of-way for the referenced highway project,"  and

another   purported  to  announce  "our  current   schedule   and

expectations  for this project - specifically the acquisition  of

your  property  at  224 to 226 Illinois Street."   As  previously

mentioned,  the superior court refused to consider these  letters

at  oral  argument  on  the cross-motions  for  summary  judgment

pending  an  appropriate  motion, and no  such  motion  was  ever


          Read in the light most favorable to the landowners, the

evidence (including the rejected supplemental exhibits) does  not

reasonably permit an inference that DOT had expressed  a  present

concrete   intention  to  condemn  specific   portions   of   the

landowners' properties in the near future.

           First,  the  maps, newsletters, and any other  general

publicity  produced  by DOT indicating that the  Illinois  Street

Extension  would  pass  through certain  private  properties  are

insufficient  to  constitute  the  requisite  "present   concrete

intention"  to acquire specific property.  In Selby  Realty,  the

California Supreme Court held that "adoption of a general plan is

several  leagues short of a firm declaration of an  intention  to

condemn property."36  The court explained that imposing liability

on  the basis of such publicity would either cause the process of

community  planning  "to grind to a halt," or  else  reduce  such

planning to "vacuous generalizations regarding the future use  of

land."37   This reasoning applies to all of the general publicity

at  issue  in  this  case.  DOT should be encouraged  to  provide

meaningful  notice  to  the public of major  projects  that  will

affect  private development; imposing liability on the  basis  of

such publicity would have exactly the opposite effect.

          Second, the specific letters from DOT to the landowners

concerning  future acquisition of their properties  are  likewise

insufficient.    Read  in  the  light  most  favorable   to   the

landowners,  a  fact-finder could reasonably  conclude  that  DOT

intended  to  acquire their property at some  unspecified  future

time.   But our intent test requires a present concrete intention

to  acquire  property, and the letters cannot be fairly  read  to

satisfy  this test.  None of the letters expresses an  intent  to

initiate acquisition proceedings immediately.  Indeed, the  three

letters  that  most  clearly  express  DOT's  intent  to  acquire

specific   properties  all  indicate  that  hazardous  substances

investigations  must be performed before fair  market  valuations

for  the  properties  can  be determined.   One  of  the  letters

indicates  that  the "right of way acquisition process  for  this

project"  would not even begin for a full year from the  date  of

the  letter,  and  another letter advised the property  owner  to

undertake planned improvements despite DOT's intention to acquire

the  property in the future due to anticipated complications with

site contamination and obtaining approval to acquire the property

via the "advanced acquisition" process.

           The  Jackovich landowners have not pointed to any case

supporting  their  claim  that  the  letters  in  this  case  are

sufficiently definite to satisfy the "present concrete intention"

requirement,  and  we  are  aware  of  none.   In  Klopping,  the

California  Supreme  Court  held that  the  city  demonstrated  a

sufficiently  specific  intent  to  condemn  property   when   it

initiated  condemnation proceedings, dismissed  the  action,  but

declared its intention to take the property in the future.38  But

in  this  case  the state had not initiated condemnation  actions

regarding  any  of the properties at the time the superior  court

entered its final order.

           Conversely,  in Homeward Bound we held  there  was  no

"concrete indication" to acquire specific land despite  the  fact

that  the Anchorage municipal assembly had passed two resolutions

designating  the owner's property as a school site,  because  the

school  district, which had final authority to approve the  site,

had  not  done  so.39  DOT's intention to acquire  the  Jackovich

landowners'  properties is at least as indefinite.  The  Illinois

Street  Project has gone through numerous changes, and there  was

no finalized plan at the time the superior court entered judgment

in this case.

               b.   DOT has not substantially interfered with the Jackovich
                    landowners' property rights.
          There is no indication the state did anything more than

make  announcements,  prepare  and  publish  plans,  and  provide

publicity  concerning the project.  As noted above, there  is  no

evidence  that the state actively interfered with the landowners'

beneficial  use of their properties, such as by prohibiting  them

from  using  their  properties  beneficially  or  denying  needed


                                c.     Ehrlander  and  Lange  are
                    inapplicable     because    the     Jackovich
                    landowners'   properties   have   not    been
           The  Jackovich landowners seem to imply that they have

stated a legally sufficient claim under the rule of Lange,41 which

we  applied  in  Ehrlander.42   But  in  those  cases  the  state

ultimately  condemned  the  claimant's  property.43   Lange   and

Ehrlander  are  therefore properly regarded  as  early  valuation

eminent  domain  cases;  they do not  establish  the  appropriate

standard for reviewing the state's pre-condemnation conduct where

condemnation proceedings are either abandoned or never initiated.

          2.   Landowners' case-specific Sandberg theory

           The  landowners briefly advance an alternative inverse

condemnation  theory.  They assert that we should consider  their

claim  under  the  case-specific analysis we  apply  in  deciding

whether government action has effected a compensable taking  even

though it does not fall into the two recognized classes of per se

takings.  Apparently in support of this alternative theory, their

reply  brief argues that the evidence demonstrates that the state

engaged in "unreasonable and negligent conduct."

           The  state neither physically invaded these properties

nor by regulation denied the owners all economically feasible use

of  their  properties. The state's alleged acts here consequently

do  not  fall within either recognized class of per se takings.44

But  that does not mean, as the Jackovich landowners may  assume,

that  we must consider the state's alleged acts in light  of  the

case-specific analysis we apply to non-per se, or ad hoc, alleged


           We have never applied the case-specific analysis to  a

case involving pre-condemnation governmental activity.45  We have

applied it to date only to cases in which the government has,  in

its  governmental capacity, allegedly restricted landowners  from

using  their  property or deprived them of the exclusive  use  of

their property.46

           We  are  reluctant to apply this doctrine  to  a  pre-

condemnation case.  Doing so would seem to needlessly parallel or

muddy   the  remedy  discussed  in  Part  III.B.1  above.     The

landowners'  relatively  terse arguments  provide  no  compelling

reason to do so in this case.

          Moreover, it is not clear how the case-specific factors

we  have  identified  might apply in such a case.47   The  fourth

factor  -  the  legitimacy  of  the  interest  advanced  by  "the

regulation or land-use decision" - implicitly recognizes that  an

ad  hoc  takings claim turns on an action having the  purpose  of

affecting  the  landowner's property rights.   But  there  is  no

indication  here  the actions attributed to  the  state  had  any

purpose of affecting or limiting the owners' rights or use of the

affected  properties.  The complained-of actions  were  taken  to

give  the  owners  and  the  community notice  of  the  project's

potential scope and progress.

            Likewise,  the  state  correctly  argues   that   the

landowners'  opening  brief  does not substantively  discuss  any

factor  other than economic impact, and observes that the state's

actions were federally required.  The landowners simply argue  in

their  reply that the legitimacy of the state's interest is  lost

when  the  state's conduct "becomes negligent and  unreasonable."

Not only did they not discuss this factor in their opening brief,

they do not support this assertion with authority.  If we were to

accept  this  proposition, it would seem to  require  an  inquiry

about  the  reasonableness of the government's actions  in  every

case  involving a proposed public works project in  which  no  de

jure  acquisition occurs.  At first glance, this  would  seem  to

demote takings law from the realm of constitutional protection to

the land of ordinary negligence.

           We consequently decline to decide whether to apply the

case-specific analysis in this case.


           For  these  reasons, we AFFIRM the  grant  of  summary

judgment to the state.

1     The landowners are the Joseph M. Jackovich Revocable Trust,
the  Dolores M. Jackovich Revocable Trust, Gavora, Inc., John  J.
Lounsbury,  Geraldine S. Lounsbury, and the Haman Family  Limited
Partnership.   The  Jackovich trusts own two  parcels  containing
four lots; Gavora, Inc. owns three parcels containing three lots;
the Haman partnership owns five lots; and the Lounsberrys own two
2     The  landowners  filed  their First  Amended  Complaint  in
November 1999.
3    The court explained that the condemnation blight doctrine is
effectively  a rule of evidence for setting the proper  valuation
date  in  the  just  compensation  phase  of  an  eminent  domain
proceeding.  See 8A Nichols on Eminent Domain  18.04[3]  (3d  ed.
4     Under  this  theory, the fact that the  property  is  never
actually condemned does not bar the conclusion that a taking  has
5     Homeward Bound, Inc. v. Anchorage Sch. Dist., 791 P.2d 610,
614 (Alaska 1990).
6     Balough  v.  Fairbanks N. Star Borough, 995 P.2d  245,  254
(Alaska 2000).
7    Id.
8    Id.
9     Anchorage  v.  Sandberg, 861 P.2d 554, 557  (Alaska  1993);
Triangle, Inc. v. State, 632 P.2d 965, 968 (Alaska 1981) ("It  is
only  when  a  trial  court  concludes  that  the  landowner  has
presented  a valid claim that the case is submitted to  the  jury
for a determination of the extent of the taking and the amount of
compensation  that  must  be  paid  by  the  state.")  (citations
10    Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
11    797 P.2d 629 (Alaska 1990).
12    791 P.2d 610 (Alaska 1990).
13    547 P.2d 282 (Wash. 1976).
14    797 P.2d at 633-35.
15     Alaska  Const.  art. I,  18.  "The  requirement  that  the
condemner pay just compensation when property is damaged provides
broader  protection for private property rights  than  the  fifth
amendment  to  the United States Constitution."  Homeward  Bound,
791 P.2d at 614 (citations omitted).
16    Homeward Bound, 791 P.2d at 614 (citations omitted).
17    Id. (citations omitted).
18    Id.
19    Id. at 613-14.
20    500 P.2d 1345 (Cal. 1972).
21    Id. at 1355.
22    Homeward Bound, 791 P.2d at 614.
23    Id. (citation omitted).
24    E.g., City of Kenai v. Burnett, 860 P.2d 1233, 1240 (Alaska
1993)   (holding  that  city  did  not  demonstrate  "unequivocal
intention"  to take easement); Homeward Bound, 791  P.2d  at  614
(holding  that  no  taking occurred because municipality's  "mere
designation"  of  property as school site  was  not  a  "concrete
indication" that municipality intended to condemn property).
25     As we will see, this case does not turn on application  of
the  Klopping requirements.  The superior court appears  to  have
relied  on  the  case only to demonstrate that  under  the  "most
expansive"  doctrine, i.e., the doctrine most  favorable  to  the
landowners, the state was still entitled to summary judgment.  We
have  not  expressly  adopted Klopping  as  a  statement  of  law
governing  an  inverse  condemnation  claim  for  a  government's
precondemnation activities.  Because the landowners do  not  urge
us  to apply Klopping in this case, it is not necessary to decide
here whether Alaska would recognize a Klopping claim.
26    547 P.2d 282 (Wash. 1976).
27    Ehrlander, 797 P.2d at 635.
28    Id. at 633.
29    Id. at 635.
30    Lange, 547 P.2d at 283.
31    Id. at 288.
32     Id. at 283, 288 (characterizing issue as whether valuation
date  in  condemnation  trial should  be  advanced  due  to  pre-
condemnation  conduct  and  concluding  that  it  should).    The
Washington  appellate  courts have  not  addressed  the  question
whether  the  Lange  test would apply to  a  case  in  which  the
property  in  question was not ultimately condemned,  but  it  is
highly doubtful that Lange would be applied in such a case.   The
Washington  Supreme  Court's discussion of  Lange  in  subsequent
cases suggests that the Lange rule is only applicable to cases in
which  property is actually condemned.  E.g., State v.  McDonald,
656  P.2d  1043,  1050 (Wash. 1983) (stating  that  Lange  merely
modifies  time of valuation in certain cases where  doing  so  is
necessary to award just compensation); Brazil v. City of  Auburn,
610  P.2d 909, 916 (Wash. 1980) (citing Lange for the proposition
that  "[t]he measure of damages is the fair market value  of  the
property  at  the  date of trial, unless fairness  to  the  owner
requires the value to be set as of some other date").
33     Homeward  Bound,  791 P.2d at 613-15 (considering  whether
temporary  designation  of property as  school  site  constitutes
taking); see also Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l
Planning  Agency,  122  S.  Ct. 1465,  1470  (2002)  (considering
whether imposing "temporary" moratoria on development constitutes
per se taking).
34    Selby Realty Co. v. City of San Buenaventura, 514 P.2d 111,
116  (Cal.  1973)  (holding  that no actual  controversy  existed
between  property  owner  and county where  general  plan  showed
streets  running through owner's property because plan could  not
be  read  to  constitute "present concrete  indication  that  the
county  either  intends  to use [the owner's]  property  for  the
proposed  streets or that it intends to acquire the  property  by
35     E.g., Barthelemy v. Orange County Flood Control Dist.,  76
Cal.  Rptr.  2d  575,  582  (Cal. App.  1998)  (collecting  cases
regarding  required  level  of state  interference  to  make  out
Klopping  inverse  condemnation claim  and  holding  that  public
entity's  conduct must have significantly invaded or appropriated
use or enjoyment of claimant's property).
36    514 P.2d at 117.
37    Id.
38    500 P.2d at 1348.
39    791 P.2d at 614.
40    The court in Selby Realty stated:

                The county has not placed any obstacles
          in  the  path of plaintiff in the use of  its
          land.    Plaintiff  has  not   been   refused
          permission  by  the county  to  build  on  or
          subdivide its county land, and its posture is
          no different than that of any other landowner
          along  the  streets identified in  the  plan.
          Furthermore,   the   plan   is   subject   to
          alteration,    modification    or    ultimate
          abandonment,  so that there is  no  assurance
          that  any public use will eventually be  made
          of plaintiff's property.
514 P.2d at 119.  See also Jones v. City of Los Angeles, 152 Cal.
Rptr.  256,   261   (Cal.  App.  1979)  ("[A]  showing  that  the
[entity's] conduct went beyond mere general planning may  not  in
itself  be  sufficient to state a cause of action.  The  claimant
must  show that obstacles were placed in plaintiffs' path in  the
use of this land.").

41    547 P.2d at 288.
42    797 P.2d at 634.
43    Id. at 632; Lange, 547 P.2d at 283.
44     R & Y, Inc. v. Municipality of Anchorage, 34 P.2d 289, 293
(Alaska  2001)  (stating that per se taking  can  result  through
physical  invasion  of  land or application  of  regulation  that
deprives  landowner of all economically valuable  use  of  land);
Beluga Mining Co. v. State, Dep't of Natural Res., 973 P.2d  570,
575  (Alaska  1999); Anchorage v. Sandberg,  861  P.2d  554,  557
(Alaska 1993); see generally Palazzolo v. Rhode Island, 553  U.S.
606  (2001)  (affirming state court rejection  of  Lucas  takings
claim where state regulated wetlands but did not deprive owner of
all economic use of property, and remanding for consideration  of
owner's  claims  under  Penn Central analysis);  Lucas  v.  South
Carolina Coastal Council, 505 U.S. 1003 (1992).
45    The case-specific takings clause analysis originates in the
Supreme Court's decisions.  See, e.g., PruneYard Shopping Ctr. v.
Robins,  447 U.S. 74, 83 (1980) (identifying several  factors  to
determine  whether  governmental  action  has  gone  beyond  mere
regulation, including "the character of the governmental  action,
its   economic  impact,  and  its  interference  with  reasonable
investment-backed  expectations") (citation  omitted);  see  also
Penn  Cent.  Transp. Co. v. City of New York, 438 U.S.  104,  124
(1978)  (explaining  that  courts  must  "engag[e]  in  .   .   .
essentially ad hoc, factual inquiries" to determine when "justice
and fairness" require public as whole rather than small number of
disproportionately burdened landowners bear costs of regulation).
46     E.g.,  R  &  Y,  Inc., 34 P.3d 289 (Alaska  2001)   (where
municipality imposed improvement setback restriction  in  wetland
area); Balough v. Fairbanks N. Star Borough, 995 P.2d 245 (Alaska
2000)  (where  junkyard was no longer permissible  use  following
rezoning);  Cannone  v. Noey, 867 P.2d 797 (Alaska  1994)  (where
state   imposed  restrictions  on  subdivision);   Anchorage   v.
Sandberg,   861  P.2d  554  (Alaska  1993)  (where  muncipality's
decisions  in  opposing improvement district prevented  landowner
from creating improvement district); State, Dep't of Natural Res.
v.  Arctic  Slope Reg'l Corp., 834 P.2d 134 (Alaska 1992)  (where
state  law  required  well operators to disclose  their  drilling
results to state, thus denying them exclusive use of their data).
47     The  factors  are: "(1) the character of the  governmental
action;  (2)  its  economic  impact; (3)  its  interference  with
reasonable investment-backed expectations; and (4) the legitimacy
of the interest advanced by the regulation or land-use decision."
R & Y, 34 P.2d at 293.