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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kiokun v. State, Dept. of Public Safety (7/25/2003) sp-5717

Kiokun v. State, Dept. of Public Safety (7/25/2003) sp-5717

     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,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA
                                

NANCY KIOKUN and CYNTHIA )
OLRUN,                        )    Supreme Court No. S-9044
                              )
           Petitioners,            )    Superior Court No. 4BE-97-
274 CI
                              )
     v.                       )    O P I N I O N
                              )
STATE OF ALASKA, DEPART- )    [No. 5717 - July 25, 2003]
MENT OF PUBLIC SAFETY,        )
                              )
          Respondent.              )
________________________________)
                              )
STATE OF ALASKA, DEPART- )    Supreme Court Nos. S-9558/9563
MENT OF PUBLIC SAFETY,        )
                              )
     Appellant/Cross-Appellee,     )
                              )
     v.                       )
                              )
NANCY KIOKUN and CYNTHIA )
OLRUN,                        )
                              )
     Appellees/Cross-Appellants.   )
________________________________)

          Petition  for Review from the Superior  Court
          of  the  State of Alaska, and on appeal  from
          the  Superior Court of the State  of  Alaska,
          Fourth Judicial District, Bethel, Charles  R.
          Pengilly, Judge.

          Appearances:  Venable Vermont, Jr.  and  Gary
          M.   Guarino,  Assistant  Attorneys  General,
          Anchorage,  and  Bruce M.  Botelho,  Attorney
          General,  Juneau, for State of Alaska.   Kari
          L.  Bazzy-Garber, Garber & Bazzy,  P.C.,  and
          Don  C.  Bauermeister, Burke &  Bauermeister,
          P.L.L.C.,  Anchorage, for  Nancy  Kiokun  and
          Cynthia Olrun.

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

          EASTAUGH, Justice.

1.   INTRODUCTION

           Tort plaintiffs claimed the State of Alaska was liable

for the deaths of three people who perished in bitter mid-January

cold  after  they  left  their car in  deep  snow  on  a  remote,

unmaintained  road.   The  plaintiffs claimed  the  Alaska  State

Troopers  negligently failed to launch a search and rescue  after

hunters told the troopers late the afternoon of January 15,  1996

they had found an unoccupied car, a "HELP" sign and arrow stamped

in  the  snow, and footprints heading east.  The temperature  was

then forty-five degrees below zero Fahrenheit.  About fifty-eight

hours  later Leah and Palmer Olrun and their young grandson  were

found dead eight miles from the car.  Assuming the troopers  owed

a  tort  duty,  we hold that the decision whether to  initiate  a

search   and  rescue  is  protected  by  discretionary   function

immunity.   We  therefore reverse the judgment  entered  for  the

plaintiffs, and remand for entry of judgment for the state.

II.  FACTS AND PROCEEDINGS

          Between 5:00 and 5:30 p.m. on January 15, 1996, hunters

Marcel Kania and Vernon Rice went to the Cantwell home-office  of

Alaska  State  Trooper Ellis.1  Rice reported to Trooper  Ellis's

wife  by  intercom  that the hunters had seen  an  abandoned  red

Subaru  in  deep snow on an unmaintained road at Mile 50  of  the

Denali Highway.  They found the car stopped in the middle of  the

road  in about eighteen inches of snow.  They saw the word "HELP"

and  an  arrow stamped in the snow, and footprints heading  east,

toward  Paxson.   Rice reported that people were in  trouble  and

needed  help.   The hunters did not find the car's  occupants  or

report   its  license  plate  number  or  any  other  identifying

features.   The car was about fifty miles from Paxson  and  about

eighty  miles from Cantwell.  It had taken the hunters about  two

hours  and  fifteen  minutes to reach  Cantwell.   Trooper  Ellis

immediately  forwarded  the information to  the  Fairbanks  State

Troopers dispatcher, who relayed it to the Glennallen dispatcher.

          At about 6:00 p.m. that night the Glennallen dispatcher

contacted Trooper Ellis, who provided all the information he  had

about  the  vehicle.   The Glennallen dispatcher  then  contacted

Trooper  Pierce at the Paxson Lodge and asked him  to  check  for

more  information around the Lodge.  At 6:25 p.m. the  Glennallen

dispatcher  contacted Trooper Heck to advise him of the  hunters'

report.   Trooper Heck asked Trooper Stevenson to travel  to  the

Subaru's  location that night via snowmachine.  Although  Trooper

Stevenson  initially agreed, both troopers decided  that  Trooper

Stevenson  should not travel alone and that it would be  best  to

wait  until morning. Trooper Heck returned to the Glennallen post

and  contacted  Trooper Ellis in Cantwell for  more  information.

Trooper  Heck  also left a message for Sergeant  Maynard  at  his

home.  Trooper Heck contacted one other trooper before ending his

shift.   He  did  not,  however, inform the  Rescue  Coordination

Center  (RCC)  that he would not be coordinating a response  that

night.   Sergeant  Maynard advised the Glennallen  dispatcher  at

10:00 p.m. to have Trooper Pierce call him the next morning.

           At  11:30  p.m.  January 15 Trooper Siegfried  of  the

Anchorage  post  was contacted by the Anchorage  dispatcher,  who

reported  that  Leah Olrun, her husband, and her grandchild  were

missing,  along  with  their  maroon Subaru.   Trooper  Siegfried

searched  the Seward Highway for the Olruns between midnight  and

2:20 a.m.

           At  9:00  a.m.  January 16 Sergeant Maynard  contacted

Captain  Clontz  and they decided a search of the Denali  Highway

using the Alaska State Trooper helicopter would be feasible  when

the  temperature rose above thirty-five degrees below zero.   The

temperature  was  then minus fifty degrees Fahrenheit.   At  2:33

p.m.  the  Anchorage Police Department dispatcher  sent  an  all-

points message regarding the Olruns and the vehicle.

           At  11:00 a.m. on January 17 a relative of the  Olruns

reported to Trooper Gibson of the Anchorage post that the  Olruns

had  left  Anchorage on Tuesday, January 11, heading  toward  the

Kenai  Peninsula.  After contacting dispatch and  learning  about

Trooper  Siegfried's search earlier that morning, Trooper  Gibson

informed  the  relative  of the search.  At  1:30  p.m.  Sergeant

Stauber  requested  a  Civil Air Patrol search  for  the  Olruns.

After  collecting  more information, Sergeant  Stauber  requested

permission to authorize a Civil Air Patrol search of the  highway

between Anchorage and Homer.

            At 7:42 p.m. on January 17 Trooper Pierce reported to

Sergeant  Maynard the connection he made between the "Be  On  The

Lookout" report, the report of the vehicle on the Denali Highway,

and   the   report  of  the  missing  Olruns.   Sergeant  Maynard

authorized an immediate search of the Glennallen area.  The Olrun

vehicle  was  found at 1:00 a.m. on Thursday, January  18,  1996.

Two-and-a-half hours later the Olruns' frozen bodies  were  found

almost eight miles east of the vehicle.

           Nancy  Kiokun (Leah Olrun's mother) and Cynthia  Olrun

(daughter  of  Leah and Palmer Olrun and mother of  the  decedent

child)  filed  suit  against the State of Alaska  and  the  State

Department  of Public Safety in December 1997.  We refer  to  the

plaintiffs  collectively  as  "Kiokun,"  and  to  the  defendants

interchangeably as the "state" or the "department."  Kiokun moved

for  summary  judgment on the issue of the department's  duty  to

rescue.  Relying on Lee v. State,2 the superior court ruled as  a

matter of law that the state had a duty to go to the Olruns'  aid

and  that  it had breached that duty.  The court ruled  that  the

department  was  not entitled to discretionary function  immunity

because the decision to conduct search and rescue operations  was

operational.  The case went to trial and the jury found that  the

state's negligence was a legal cause of the three deaths and that

the  department was fifty-one percent responsible for the Olruns'

deaths.3

          This appeal follows.4

III. DISCUSSION

          A.   Standard of Review

                     Whether  a  governmental act is entitled  to

          discretionary  function immunity is a matter  of  law.5

          We  review  questions of law de novo.6   We review  the

          interpretation   of  statutes  using  our   independent

          judgment.7

          B.   Duty

           Kiokun filed a motion to establish the state's duty to

the  Olruns8  and  a  motion for partial summary  judgment.   The

superior  court  entered  partial summary  judgment  against  the

state,  ruling  that  "[t]he State of Alaska through  the  Alaska

State  Troopers owed a duty to the Olrun family to  go  to  their

aid. . . .  The State of Alaska breached its duty as a matter  of

law."  The superior court relied on Lee v. State9 to support  its

conclusion.

           Normally  we do not reach the question of AS 09.50.250

discretionary  function immunity unless we have first  determined

that  the state owed an actionable duty10 and that it is at least

disputed whether the state breached that duty.  The state  argues

that  no  actionable duty arose under statute,  the  department's

operating manual, our case law, or public policy.  Kiokun  argues

that  the state owed a duty that arose out of statute, assumption

of duty, common law, and the department's operating manual.

           Notwithstanding  our usual practice when  we  consider

issues concerning tort claims against the state and discretionary

function  immunity,  we  proceed in this  case  directly  to  the

immunity analysis because it better illustrates the public policy

issues  that  would  also  bear on  a  duty  analysis.   For  our

purposes, therefore, we assume that the department owed  a  duty,

arising  at  some  undetermined time, to  commence  a  meaningful

search for the Olruns and possibly a rescue attempt.

          C.   Immunity

           The state moved for summary judgment, arguing that its

failure  to launch an immediate search and rescue was a  decision

protected  by discretionary function immunity.11  Kiokun  opposed

the  motion  and  asserted that the Department of  Public  Safety

Operating  Procedures  Manual,  testimony  from  a  former  state

trooper,  and Alaska statutes and case law all dictated that  the

decision  not  to  launch  an immediate  search  and  rescue  was

operational  and  therefore  not  immune  from  a  tort  claim.12

Although  we  explain the doctrine in more detail  below,  it  is

pertinent  to  note  now  that  we distinguish  between  planning

activities  and operational activities to determine  whether  the

state's  actions  are  immune from  a  tort  claim.   Operational

activities are not immune.13

           The superior court granted Kiokun summary judgment  on

the  duty issue, stating orally, "[A] duty to rescue does  exist.

I  rely  on  Lee and its progeny principally in recognizing  that

duty.  .  . .  I think there is a duty imposed on police officers

by  law  to rescue people in need."  The superior court  did  not

undertake a discretionary function analysis.  Instead, it stated,

"[t]his behavior . . . is operational activity."  The court  also

granted  Kiokun summary judgment on the issue of breach of  duty.

The court reserved the issue of causation for the trial jury.

           The  state  advances  three  reasons  to  support  its

appellate argument that the decision whether to initiate a search

and  rescue  is  protected  from  tort  claims  by  discretionary

function immunity.  First, it contends that AS 18.60.120  governs

search  and  rescue  initiation and is  a  permissive  statute.14

Because the statute uses the word "may," the state concludes that

the  legislature  intended the department to use  its  discretion

when  deciding  whether to launch a search and rescue  operation.

The  state  relies  on  our  decision  in  State,  Department  of

Transportation  &  Public Facilities v. Sanders,15  in  which  we

looked  to  the language of the traffic regulations to  determine

whether  airport  officials  had a  duty  to  enforce  them.   We

concluded  that  the use of the permissive "may" meant  that  the

airport   officials  had  discretion  whether  to   enforce   the

regulations.16   The state claims that here, as  in  Sanders,  we

should hold that the permissive language of the statute left  the

decision  whether to launch a search and rescue  attempt  to  the

Department of Public Safety's discretion.

           Second, the state asserts that the decision whether to

initiate  a  search  and rescue is inherently based  on  resource

allocation   and  is  therefore  protected  as  a   discretionary

function.   It  relies  on  cases in which  we  held  that  state

decisions   that  involved  evaluation  of  road  conditions   to

determine  whether  to  issue tickets  to  motorists  driving  at

unreasonable speeds17 and whether to close the Parks Highway  due

to  ice18  are protected against tort claims.  In those cases  we

held  that the state's decisions were protected from tort  claims

under the doctrine of discretionary function immunity because the

decisions   involved  evaluation  of  safety   concerns.19    The

department  argues that whether to initiate a search  and  rescue

depends   on   weather   conditions,  available   manpower,   and

"allocation of scarce emergency rescue resources."  It analogizes

this  case to Johnson v. United States, Department of Interior.20

The  United  States Court of Appeals for the Tenth Circuit  there

held that the activities of park rangers in gathering information

and  deciding  whether to initiate a search and  rescue  balanced

"safety  objectives"  against practical resource  considerations,

were "grounded in social and economic policy," and were therefore

within the federal discretionary function exception and protected

from tort claims.21

           Finally,  the department concedes that it  could  have

been  subject to a tort claim had it initiated a negligent search

and  rescue,  but  argues that because it did  not  undertake  to

rescue  the  Olruns, it did not assume a duty that  would  render

discretionary function immunity inapplicable.  In State v. Abbott

we  held  that  the  state  undertook  a  duty  when  its  winter

maintenance  of  the Seward Highway resulted  in  more  dangerous

conditions.22  Because the state had undertaken the maintenance of

the  highway, we held that it had undertaken an operational  duty

and thereby waived its immunity.23  Similarly, in Adams v. State,

we  held  that  the  decision whether to  inspect  hotels  was  a

discretionary  function but that once the state had  inspected  a

particular  hotel it had waived immunity for incidents  resulting

from  the  negligent inspection of that hotel.24  The  department

argues  here that because the troopers did not decide to initiate

a  search and rescue, they did not undertake an operational  duty

to  rescue  the Olruns.  (The troopers ultimately  did  launch  a

search  in  the  vicinity of the Subaru  based  on  the  hunters'

report, but the decision to do so was made after the Olruns  must

have  already  succumbed  to the bitter cold,  probably  sometime

before daylight on January 16.)

           Kiokun  responds  that  the department's  position  is

antiquated and inappropriately impersonal.  She contends that the

legislative  history of AS 18.60.120 does not indicate  that  the

legislature  intended  the statute to  immunize  the  state  from

lawsuits  related to search and rescue decisions.   She  contends

that  the  decision was operational, because the troopers  had  a

mandatory duty to commence a prompt search.  Finally, she asserts

that  the  troopers  assumed a duty  to  the  Olruns  after  they

promised to follow up on the hunters' report.

           "[W]e  identify `discretionary' acts or  functions  by

examining  whether  the  act  or function  can  be  described  as

`planning' or `operational.' "25  We distinguish between decisions

that  involve  policy  formation and those  that  involve  policy

execution or implementation.26  This ensures that courts  do  not

step  into  the  policy  roles committed  to  other  branches  of

government.27  The United States Supreme Court has held that  "if

the  policies and programs formulated by the [agency] allow  room

for  implementing officials to make independent policy judgments,

the  discretionary function exception protects the acts taken  by

those officials in the exercise of this discretion."28

           In  holding that the state owed a duty to  go  to  the

Olruns' aid, the superior court relied on Lee v. State, in  which

we  held that a state trooper had a duty to aid a girl whose  arm

was  in  the  mouth  of a caged lioness at an  amusement  park.29

Kiokun contends that the duty imposed in Lee is inconsistent with

granting  discretionary function immunity.  It  might  be  argued

that  because  the  hunters' report revealed  that  persons  were

potentially  at high risk of injury or death, the  same  duty  to

rescue  imposed on the trooper in Lee also compelled the troopers

to respond here.

           But  the  state  did  not argue in  Lee  that  it  was

protected  by  discretionary function  immunity.   (The  question

there was whether the Alaska Good Samaritan Statute applied.   We

held  that  it  did  not,  because the  trooper  had  a  duty  to

respond.30)  The trooper had actually commenced a rescue effort in Lee but

allegedly performed it negligently.  Moreover, a duty to  conduct

a  search or rescue does not inevitably carry with it a  duty  to

conduct  an  immediate  search and  rescue.   The  difference  is

illustrated  by the differences in the circumstances  facing  the

troopers  in each case.  In Lee, the child's companion  ran  from

the  amusement park to a nearby trooper office for  help.31   The

lioness had already grabbed the child's arm in its teeth, and the

companion  had been unable to secure her release by striking  the

lioness   with  a  pipe.32   The  trooper  was  able  to  respond

immediately.  No issue was raised about any physical or practical

reasons  for not immediately responding, and there was  no  claim

the  trooper  failed  to respond promptly.   In  comparison,  the

limited information the hunters conveyed lacked the immediacy  of

the  report  received in Lee.  More importantly,  the  formidable

distances, climatic conditions, and practical limitations on  the

available  transportation choices made it necessary  to  consider

factors not present in Lee.

           In  contrast, in Adams v. City of Tenakee Springs,  we

held  that  staffing  a fire department was discretionary  partly

because  it was a resource allocation decision.33  We  relied  in

that  case  on  Estate  of  Arrowhead v. State34  and  Industrial

Indemnification Co. v. State35 for the proposition that decisions

regarding  resource allocation are immune from  judicial  review.

In  Guerrero v. Alaska Housing Finance Corp., we held that  "what

qualifies  as a matter of basic planning or policy often  depends

more on the factual circumstances surrounding an agency's actions

than  it  does  on  the actions' inherent nature."36   We  quoted

Abbott's holding that "[o]nce the initial policy determination is

made  .  . . decisions as to how that decision should be  carried

out  .  .  . [are] made at the operational level."37  Search  and

rescues  may  fall  into  this category because  before  troopers

decide whether to launch a search or a rescue, they must evaluate

weather  and  safety conditions, determine if suitable  resources

are available, and generally weigh the risks against the benefits

of a particular endeavor.

          Angnabooguk v. State, Department of Natural Resources38

is   particularly  helpful  in  categorizing  search  and  rescue

decisions.   There,  a  fire  burned out  of  control  after  the

Division  of  Forestry  allegedly set a remedial  fire  that  the

division did not have enough resources to contain.  We held  that

there was no actionable statutory duty of care to fight the  fire

non-negligently.39  We further held that the department's internal

rules  and  guidelines did not create a duty of care.40   We  did

hold,  however,  that the department owed a duty  of  care  as  a

matter  of  public policy.41  We relied on City of  Fairbanks  v.

Schaible,42 in which we held that when a fire department  chooses

to fight a particular fire, it must do so non-negligently.43

           We  went  on  to say in Angnabooguk that  neither  the

Alaska   Tort   Claims  Act  nor  our  case  law  supported   the

department's  contention  that  all  firefighting  decisions  are

protected  by  discretionary  function  immunity.44   First,   we

observed  that the plain language of the tort claims statute  did

address  some specific activities and we concluded that  had  the

legislature  intended to immunize all firefighting activities  it

could have said so in the statute.45  Second, we noted that we had

never  held  that  an entire class of decisions was  "necessarily

bound  up with policy considerations" sufficient to immunize  all

firefighting  decisions.46 After reviewing the  entirety  of  our

discretionary function immunity jurisprudence,47 we reiterated the

distinction  between  planning and  operational  decisions48  and

instructed  the  superior court on remand to determine  for  each

alleged negligent act whether it was a planning or an operational

decision.49

           Just  as we were not prepared in Angnabooguk  to  hold

that  all  firefighting decisions are entitled  to  discretionary

function  immunity, we are not prepared in this case to say  that

every search and rescue decision is immune from tort claims.   We

hold  here,  however,  that the initial  decision  in  this  case

whether  to  launch  a search and rescue effort  is  sufficiently

based  on  resource  allocation and public policy  considerations

that it is immune.

           In reaching that conclusion, we find Johnson v. United

States,  Department of Interior50 particularly instructive.    In

that  case,  a  group of hikers climbing Buck Mountain  in  Grand

Teton  National Park lost contact with Johnson, a member  of  the

group.  One of the hikers notified park rangers that Johnson  was

missing. The park rangers did not initiate a climbing search  and

rescue  until five hours after receiving the initial report  that

Johnson  was  lost.51  The rangers initiated a helicopter  search

early  the  next morning but Johnson had died of hypothermia  the

previous  evening after sustaining injuries while descending  the

mountain.52   The United States Court of Appeals  for  the  Tenth

Circuit reviewed the process by which the rangers made search and

rescue  decisions.   It recognized that they  "must  act  without

reliance  upon  fixed  or  readily ascertainable  standards  when

making  a  search and rescue decision in the field."53   It  then

considered  whether  the  rangers' search  and  rescue  decisions

"simply"  involved weighing considerations under an  "established

program"  or  whether they involved "the balancing  of  competing

policy  considerations."54  It observed that "[t]he discretionary

function  exception  may  apply in the  absence  of  a  conscious

decision, so long as the . . . search and rescue program  allowed

room for the rangers to make independent policy judgments."55  The

court then held:

          the  rangers'  decision if, when  or  how  to
          rescue  inherently involves the balancing  of
          safety   objectives  against  such  practical
          considerations  as  staffing,   funding   and
          minimizing  government intrusion.   As  such,
          these  decisions are grounded in  social  and
          economic  policy, and thus are shielded  from
          liability under the [Federal Tort Claims Act]
          discretionary function exception.[56]
          
           Kiokun argues that the troopers' decisions whether and

when to initiate a search and rescue are not discretionary.   But

we  think that a decision whether to conduct a search and  rescue

is  inherently a decision regarding public safety objectives  and

the allocation of resources.

           The Wisconsin Supreme Court offers a different way  to

analyze   search  and  rescues.   It  compares  ministerial   and

discretionary activities and on a case-by-case inquiry applies  a

"known danger" exception to immunity.57  The court explained:

          [A]  dangerous situation will be held to give
          rise  to a ministerial duty only when  "there
          exists  a known present danger of such  force
          that   the   time,  mode  and  occasion   for
          performance  is  evident with such  certainty
          that  nothing  remains for  the  exercise  of
          judgment and discretion."
          
               . . . .

          For  the known danger exception to apply, the
          danger must be compelling enough that a self-
          evident,     particularized,     and     non-
          discretionary municipal action  is  required.
          The  focus is on the specific act the  public
          officer  or  official  is  alleged  to   have
          negligently performed or omitted.[58]
          
           Lee  v.  State59  involved a particularized  and  non-

discretionary  trooper  response to aid  a  girl  whose  arm  was

reported  to  be in the mouth of a lioness at a nearby  amusement

park.   It  is  a graphic example of a "known danger"  situation.

The  report identified a particularized threat, a victim  already

in  extreme  jeopardy and unlikely to be able to protect  herself

with  her  own  resources, and a specific nearby location  easily

reached by the responding trooper.  Given these circumstances, no

conceivable discretion about whether to respond, when to respond,

and  where  to  go  was  involved.   However,  under  Wisconsin's

analysis,  a report of the type received from the hunters  cannot

be  classified as involving a "known danger" because  the  proper

way   to   respond  is  not  self-evident  or  non-discretionary.

Judgment and discretion must be exercised in deciding what to  do

and how to do it in response to that sort of report.

           In  this case, the troopers received information about

the Olruns and formulated a response based on weather conditions,

accessibility  of resources, and availability of  manpower.   The

hunters  found  the  Olruns' car at Mile 50 on  the  unmaintained

Denali  Highway, eighty miles from Cantwell and fifty miles  from

Paxson.  The  car  was also eight miles from the  Maclaren  River

Lodge and a mile and a half from Moore's Camp.  After the hunters

found  the car, it took them about two hours and fifteen  minutes

to reach the Cantwell trooper post.  The hunters did not know how

long  the car had been abandoned when they found it, but  because

they  saw footprints and an arrow and "HELP" sign stamped in  the

snow,  they reported that there were people in trouble.   It  was

forty-five  degrees below zero Fahrenheit the evening of  January

15.   The  troopers did not know how the Olruns were  dressed  or

what provisions they had with them. The extreme temperatures made

aircraft searches or ground travel difficult or impossible.

           We  asked the parties for supplemental briefing on the

issue  of  what decisions were made by the troopers  and  when.60

Trooper  Heck  made the decision sometime between 6:25  p.m.  and

7:20  p.m. on January 15 that it was too cold and dark to proceed

with  rescue efforts that night, over an hour after the  troopers

received  the hunters' report.  Because the hunters had to  drive

about two hours to reach the Cantwell post, Trooper Heck made his

decision  more  than  three  hours after  the  hunters  left  the

abandoned  vehicle.   Kiokun's expert,  an  arctic  engineer  and

"specialist in frost formation in Alaska weather" testified  that

the  Olruns likely left their vehicle around 1:30 p.m. on January

15.   This  was  perhaps six hours before Trooper Heck  made  his

initial  decision.  Trooper Heck determined that  it  was  likely

that  the Olruns could walk the eight miles to the lodge  by  the

time anyone could reach them and that resources were better spent

in  the  morning.  Although the record establishes  that  Trooper

Heck was later disciplined by the Department of Public Safety for

failing   to   take  further  measures,  for  purposes   of   our

discretionary  function  immunity  inquiry,  it  was  within  the

department's  discretion for Trooper Heck to make  his  decision.

In  personal  injury  actions against the  state,  the  issue  of

negligence   arises  only  if  the  conduct  at  issue   involves

performance of an operational function and thus falls outside the

protection  of  discretionary  function  immunity;  by  contrast,

because  sovereign immunity does not constrain a  state  agency's

actions,  the  department  may impose  discipline  for  negligent

breaches of its standards of conduct regardless of whether  those

breaches involve discretionary functions.61

           We  conclude that the evaluation of weather conditions

and  resource  availability  is  better  left  to  the  immediate

discretion and expertise of the Department of Public Safety  than

evaluated  in  retrospect  by the courts.62   We  hold  that  the

decision  whether  to  initiate a  search  and  rescue  operation

remains  one  of  policy.  Some, although  not  necessarily  all,

decisions  made  after a search and rescue is  commenced  may  be

operational.63

           We  have said that if the state has breached a statute

or  regulation  expressly  requiring it  to  act  under  specific

circumstances,  its decisions are not protected by  discretionary

function  immunity.64   Kiokun argues that  the  troopers  had  a

mandatory  duty  to  go to the Olruns' aid  under  AS  44.41.020,

which  provides  that  "[t]he Department of Public  Safety  shall

administer  functions  relative to the  protection  of  life  and

property."   The  department responds that AS 18.60.120  controls

searches and rescues.  Alaska Statute 18.60.120 states:

          Upon  being notified that a person  is  lost,
          injured,  killed, or is in need of  immediate
          rescue, the commissioner of public safety  or
          a  designee may appoint a competent person to
          organize,  direct,  and guide  a  search  and
          rescue  party for the purpose of rescuing  or
          retrieving   the  person  of   the   person's
          remains.
          
We  read  these two statutes as authorizing the state to  conduct

search  and rescue operations. We do not read them as imposing  a

mandatory  duty  which  would  be  enforceable  in  the  abstract

regardless  of  the  circumstances in  a  given  situation.   The

state's  duty  necessarily turns on the circumstances  presented.

This  duty  squarely implicates the same resource allocation  and

risk-benefit  considerations best left to the  persons  who  must

decide what to do when troopers receive a report like the one the

hunters made.

           We  similarly do not read the department's  operations

manual  to  impose  an  actionable duty.   The  state's  arguable

failure to adhere to the manual consequently does not prevent  it

from invoking the discretionary function immunity defense.

IV.  CONCLUSION

           Because  the troopers' decision whether to initiate  a

search   and   rescue  was  protected  from  a  tort   claim   by

discretionary function immunity, we REVERSE the judgment,  VACATE

the  jury  verdict  and damages award, and REMAND  for  entry  of

judgment for the state.

_______________________________
1     The  dates and times and other specific facts set out  here
give  context  to  the legal issues before us.  And  although  we
sometimes   refer  to  facts  described  in  the   administrative
investigation   report,  the  dispositive   facts   are   largely
undisputed.
2    490 P.2d 1206 (Alaska 1971).
3     The  jury  found that the department was fifty-one  percent
responsible  for the Olruns' deaths.  It awarded  $1,800,000  for
the  Olruns'  pre-death suffering, $451,996 in economic  damages,
and  $7,480  for  funeral  expenses.  It  awarded  $3,000,000  to
Cynthia  Olrun for losses relating to the death of  her  son  and
$2,500,000 collectively to all surviving family members for  loss
of society and mental distress damages.
4     Kiokun  also  filed a petition for review after  the  trial
court ruled that the Alaska wrongful death statute, AS 09.55.580,
does  not  allow claims for loss of adult consortium.  The  trial
court  also ruled that the non-economic damages cap under  former
AS  09.17.010  applied to wrongful death actions  and  the  court
applied the cap to the jury's award.  Kiokun cross-appeals  these
two  rulings.   Our  ruling  on  the  immunity  issue  makes   it
unnecessary  to  consider the issues raised in Kiokun's  petition
and cross-appeal.
5     Angnabooguk v. State, Dep't of Natural Res.,  26  P.3d  447
(Alaska 2001).
6    Kooly v. State, 958 P.2d 1106, 1107 (Alaska 1998).
7    Sauve v. Winfree, 985 P.2d 997, 999 (Alaska 1999).
8     A  negligence action may lie against the state if the state
owed  a  duty of care to the plaintiffs.  Mesiar v. Heckman,  964
P.2d 445, 448 (Alaska 1998).
9     490  P.2d  1206,  1210 (Alaska 1971)  (holding  that  state
trooper had duty to aid girl whose arm was in mouth of lioness at
amusement park).
10     See  Guerrero v. Alaska Hous. Fin. Corp., 6 P.3d 250,  254
(Alaska  2000); Kooly, 958 P.2d at 1108 (deciding  first  whether
there is actionable duty before reaching immunity question).
11     AS  09.50.250 waives sovereign immunity, allowing  certain
causes   of   action  against  the  state,  while  simultaneously
shielding state discretionary functions from legal challenge.  It
provides in pertinent part:

          A  person  .  . . having a . . .  tort  claim
          against the state may bring an action against
          the   state  in  a  state  court   that   has
          jurisdiction over the claim. . . .   However,
          an  action  may  not  be brought  under  this
          section  if the claim (1) . . . is an  action
          for  tort,  and  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.
          
12    Dep't of Transp. & Pub. Facilities v. Sanders, 944 P.2d 453,
456  (Alaska  1997)  ("Only acts or functions  occurring  at  the
planning   level  are  entitled  to  immunity  as   discretionary
functions under AS 09.50.250.").
13    Id.
14    AS 18.60.120 provides:

          Upon  being notified that a person  is  lost,
          injured,  killed, or is in need of  immediate
          rescue, the commissioner of public safety  or
          a  designee may appoint a competent person to
          organize,  direct,  and guide  a  search  and
          rescue  party for the purpose of rescuing  or
          retrieving   the  person  or   the   person's
          remains.
          
15    944 P.2d 453 (Alaska 1997).
16     Id. at 457; see also Wallace v. State, 557 P.2d 1120, 1123
nn.7, 8 (Alaska 1976).
17     Earth Movers, Inc. v. State, 691 P.2d 281, 283-84  (Alaska
1984).
18     Estate of Arrowwood v. State, 894 P.2d 642, 645-46 (Alaska
1995).
19    Id.; Earth Movers, 691 P.2d at 283.
20    949 F.2d 332, 338 (10th Cir. 1991).
21    Id. at 338, 339.
22    498 P.2d 712, 715-16 (Alaska 1972).
23    Id. at 716.
24    555 P.2d 235, 240 (Alaska 1976).
25     Sanders, 944 P.2d at 456 (citing Abbott, 498 P.2d at  720-
22).
26    Id.
27     See  Indus. Indem. Co. v. State, 669 P.2d 561, 563 (Alaska
1983) ("[C]ourts must not intrude into realms of policy exceeding
their institutional competence."); Johnson v. State, 636 P.2d 47,
64 (Alaska 1981).
28    Berkovitz v. United States, 486 U.S. 531, 546 (1988).
29    490 P.2d 1206, 1210 (Alaska 1971).
30    Id. at 1208-09.
31    Id. at 1208.
32    Id.
33    963 P.2d 1047, 1050-51 (Alaska 1998).
34    894 P.2d 642, 646 (Alaska 1995).
35    669 P.2d at 564-65.
36    6 P.3d 250, 261-62 (Alaska 2000).
     37    Id. at 262 (quoting Abbott, 498 P.2d at 722).
38    26 P.3d 447 (Alaska 2001).
39    Id. at 451-52.
40    Id. at 452.
41    Id. at 452-53.
42    375 P.2d 201 (Alaska 1962).
43     See also Adams v. City of Tenakee Springs, 963 P.2d  1047,
1049  (Alaska  1998) (affirming superior court in case  in  which
jury  was  instructed  that city could not  be  held  liable  for
resource  allocation  but  could be  held  liable  for  negligent
conduct).
44    26 P.3d at 454-55.
45    Id.
46    Id. at 455 (original emphasis).
47    Id. at 456 n.34.
48    Id. ("[T]he 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.").
49    Id. at 458.
50    949 F.2d 332 (10th Cir. 1991).
51    Id. at 334-35.
52    Id.
53    Id. at 338.
54    Id. at 339.
55    Id.
56     Id. at 339; see also Huber v. United States, 838 F.2d 398,
401  (9th  Cir.  1988)  (Coast Guard can decide  whether  to  aid
vessel);  In  re Am. Oil Co., 417 F.2d 164, 168 (5th  Cir.  1969)
(Coast  Guard's  search  and  rescue  plan  imposed  no  duty  on
government to public).
57     Lodl  v.  Progressive N. Ins. Co., 646 N.W.2d 314,  323-24
(Wis.  2002); see also Hoskins v. Dodge County, 642  N.W.2d  213,
219-20 (Wis. App. 2002).
58     Lodl, 646 N.W.2d at 324 (quoting C.L. v. Olson, 422 N.W.2d
614 (Wis. 1988)).
59    490 P.2d 1206 (Alaska 1971).
60    In their supplemental briefing, both parties referred to the
administrative investigation report.  The department objected  on
the  grounds  that  the  report was  not  admitted  into  "record
evidence."   After  considering the department's  objections,  we
believe  the  report contains helpful information,  and  we  have
relied  on  it  in  discussing  some  details  of  the  troopers'
activities.
61    Kooly v. State, 958 P.2d 1106, 1108 (Alaska 1998).
62     See  Sanders, 944 P.2d at 458-59 ("Because  the  governing
regulation  provides  no standards that  a  court  might  use  to
analyze   the   non-enforcement  decision,  the   non-enforcement
decision is protected by the discretionary function exception  in
AS 09.50.250(1).").
63     Cf.  Angnabooguk, 26 P.3d at 459 ("[C]ertain  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.").
64    See id. at 457.