Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Brewer v. State (11/28/2014) sp-6968

Brewer v. State (11/28/2014) sp-6968

         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@akcourts.us.  



                  THE SUPREME COURT OF THE STATE OF ALASKA  



WILLIAM BREWER II, DONNA                            )  

BREWER, WILLIAM BREWER III,                         )        Supreme Court No. S-14916  

STEPHANIE BREWER, CHARLES                           )  

GRAY, MARGARET GRAY and                             )        Superior Court No. 4FA-10-02618 CI  

ALLEN GRAY,                                         )  

                                                    )        O P I N I O N  

                          Appellants,               )  

                                                    )        No. 6968 - November 28, 2014  

                 v.                                 )  

                                                    )  

STATE OF ALASKA,                                    )  

                                                    )  

                          Appellee.                 )  

                                                    )  



                 Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                 Fourth  Judicial  District,  Fairbanks,  Douglas  Blankenship,  

                                                                   

                 Judge.  



                 Appearances:  William  R.  Satterberg,  Jr.,  Law  Offices  of  

                                                  

                 William R. Satterberg, Jr., Fairbanks, for Appellants.  J. Anne  

                                                                                       

                 Nelson,      Assistant      Attorney      General,      Anchorage,        and  

                                            

                 Michael       C.   Geraghty,       Attorney      General,      Juneau,     for  

                 Appellee.  



                 Before:  Fabe, Chief Justice, Stowers, Maassen, and Bolger,  

                                                                     

                 Justices. [Winfree, Justice, not participating.]  



                 MAASSEN, Justice.  


----------------------- Page 2-----------------------

I.        INTRODUCTION  



                                                                                                       

                   Major forest fires swept through areas south of Fairbanks in the summer of  



                                                                                                              

2009 and approached properties owned by the appellants (the landowners).  In an effort  



                                                                                                               

to save the landowners' structures, firefighters working under the direction of the State  



                                                                                                                       

Department  of  Forestry  intentionally  set  fire  to  the  landowners'  vegetation.    The  



burnouts deprived the advancing wildfires of fuel and saved the structures.  But the  



                                                       

landowners sued the State, bringing a takings claim under the eminent domain provision  



                                                                                                                 

of the Alaska Constitution, article I, section 18 (the Takings Clause), and tort claims for  



                                                                                 

negligence and intentional misconduct.  We affirm the superior court's dismissal of the  



                                     

tort  claims  because  of  governmental  immunity;  we  reverse  its  dismissal  of  the  



constitutional  claim,  remanding  it  to  the  superior  court  for  further  consideration  of  



                                                                                                               

whether the specific exercise of the State's police powers at issue here was justified by  



the doctrine of necessity.  



II.       FACTS AND PROCEEDINGS  



          A.       Facts  



                                                                                                           

                   During the summer of 2009, wildfires that came to be known as the Railbelt  

                                                                                                                     1  The  

Complex developed in Interior Alaska, ultimately engulfing over 600,000 acres. 



appellant landowners owned property in subdivisions known as Teklanika Channel Lake,  



Dune Lake, and Totek Lake, about 45 miles southwest of Fairbanks.  Their properties  



are on land designated by the State's "Alaska Interagency Wildland Fire Management  



Plan" (the Plan) as a "Full Management Option" fire protection area, meaning that the  



State  anticipated  an  "aggressive  initial  attack  dependent  upon  the  availability  of  

                                                                                                         



          1                  LASKA    INTERAGENCY   COORDINATION    CTR .                        PREDICTIVE   SERVS .  

                   See  A 

S                                                                                                             

  ECTION ,  ALASKA  FIRE   SEASON  2009:                      WILDLAND  FIRE   SUMMARY  &  STATISTICS  



                                         

ANNUAL REPORT 18(2009), available at  http://fire.ak.blm.gov/content /aicc/stats/archive  

/2009.pdf.  



                                                            - 2 -                                                         6968  


----------------------- Page 3-----------------------

                                    2  

suppression  resources."     The  landowners  and  the  State  agree  that,  as  the  fires  



approached, firefighters acting under State authority entered the landowners' property  

                                                                 



and set fire to vegetation surrounding their structures; these fires were pushed out to meet  

                                                                                       



the oncoming wildfires.  The tactic, called backfires or burnouts, is used to deprive an  



                                  3  

                                       According  to  the  State,  the  Railbelt  Complex  fires  passed  

oncoming  fire  of  fuel.                               



through the subdivisions without damaging the landowners' structures; the landowners  

                                                                                                          



do not appear to dispute it.  



          2         The Plan sets four levels of fire management - Critical, Full, Modified,   



and Limited - with different planned responses and objectives for each.  The listed  

objectives for the Full Management Option are these:  



                    1.       Control   all   wildland   fires   occurring   within   this  

                                                                

                    management   option   at   the   smallest   acreage   reasonably  

                   possible on initial attack without compromising fire fighter  

                                      

                    safety.  



                    2.       Protect sites or areas designated as Full management  

                    from the spread of wildland fires burning in a lower priority  

                                                                                  

                    management option.  



                    3.       Minimize damage from wildland fires to the resources  

                    identified      for    protection        within      the    Full     management  

                    designation commensurate with values at risk.  



          3         The State explains that "backfire" refers primarily to a fire set to attack and  

                                                                               

suppress  an  oncoming  wildfire,  whereas  "burnout"  refers  primarily  to  a  fire  set  in  

defense of designated areas behind control lines.  The State asserts that it set the fires at  

issue primarily to protect structures rather than to suppress the wildfire complex; we  

therefore use the term "burnout" in this opinion.  



                                                             - 3 -                                                      6968
  


----------------------- Page 4-----------------------

           B.        Proceedings  



                     Landowners William Brewer II and Donna Brewer, William Brewer III and  



                                                                                                         4  

                                                                                                            all filed suit against     

Stephanie Brewer, Charles and Margaret Gray, and Cindy Walker 



the State in 2010.  Each suit alleged a takings claim under article I, section 18 of the  



                                          

Alaska Constitution and tort claims alleging negligent and intentional acts.  The suits  



                                                                                                                   

were consolidated in December 2010.  Allen Gray filed suit in March 2011, asserting  



identical harms and legal theories, and his suit was consolidated with the others.  



                                                 

                     The landowners moved for partial summary judgment, contending that the  



                                                                                                                     

burnouts constituted a compensable taking as a matter of law and that the State's actions  



                                                                                                       

were  intentional,  making  it  liable  in  tort.                        According  to  the  landowners,  the  only  



                                             

remaining question of fact was the amount of just compensation they were due.  The  



                                       

State  cross-moved  for  summary  judgment,  claiming  governmental  immunity  and  



advancing a number of arguments against liability for a taking.  



                                                                                                            

                     In subsequent filings the landowners elaborated on  their claims.  They  



                                                          

asserted that, in contravention of its stated policy of Full Management Option protection,  



                                                                                                                                

the State made no attempt to minimize or suppress the wildfires, instead opting to burn  



                                                                                

"as much wildland forest as possible," impliedly for purposes of "fuels management."  



                                         

The landowners offered affidavits alleging that the State conducted the burnouts even  



                                                                                         

though there was no "imminent threat of fire damage" to their properties and the State  



                                                                                                                  

could have "undertaken . . . the damaging fire suppression activities on bordering State- 



owned lands" instead.   



                                                                                                    

                     The superior court granted summary judgment to the State.  As for the  



                                                                            

constitutional claim, the superior court decided that the State's actions did not constitute  



a taking because they were a valid exercise of its police powers.  As for the tort claims,  



           4         Walker was released from the suit before summary judgment.  



                                                                  - 4 -                                                                6968  


----------------------- Page 5-----------------------

                                                                                             

the  superior  court  concluded  that  the  State  was  entitled  to  immunity  under  both  



AS 09.50.250 and AS 41.15.045.  



                        The landowners filed this appeal.  



III.        STANDARDS OF REVIEW  



                                                                                                                   

                        We review a grant of summary judgment de novo, affirming if there is no  



                

genuine dispute of material fact and the undisputed facts demonstrate that the moving  



                                                                                    5  

party is entitled to judgment as a matter of law.   We review the facts in the light most  



                                                                                                                                                        6  

                                                                                         

favorable to the non-moving parties and draw all reasonable inferences in their favor. 



                                                                

We review the Alaska Constitution and Alaska statutes de novo, "adopting rules of law  

that best reflect precedent, reason, and policy."7  



IV.         DISCUSSION  



            A.          It Was Error To Dismiss The Landowners' Takings Claims.  



                                                                     

                        Article  I,  section  18  of  the  Alaska  Constitution  -  entitled  "Eminent  



                                                                                     

Domain" and commonly known as the Takings Clause - states that "[p]rivate property  

shall  not  be  taken  or  damaged  for  public  use  without  just  compensation."8                                                               The  



                                                                                                                         

landowners contend that the State damaged their private property for public use, entitling  



them to just compensation under the Constitution.   



            5           Waiste v. State, 10 P.3d 1141, 1144 (Alaska 2000).  



            6           Id. at 1144-45.  



            7           Id. at 1144.  



            8           We recognize that when the government takes private property for public     



use without paying just compensation and the property owner brings suit, the claim is not                                              

for eminent domain but for inverse condemnation.                                           See Mt. Juneau Enters., Inc. v. City  

& Borough of Juneau, 923 P.2d 768, 773 (Alaska 1996).  The constitutional provision  

on which such a suit is grounded, however - the Takings Clause - is entitled "Eminent  

                                                                                                                   

Domain."   



                                                                         - 5 -                                                                   6968
  


----------------------- Page 6-----------------------

                   "We  liberally  interpret  Alaska's  Takings  Clause  in  favor  of  property  



                                                                                                                  9  

                                                                                                                       This  

owners,  whom  it  protects  more  broadly  than  the  federal  Takings  Clause." 



                                                                     

protection  applies  to  personal  as  well  as  real  property  and  allows  compensation  for  



                                                           10  

                                                                                                                    

temporary as well as permanent takings.                        Takings claims are not based in tort and do  



                                                                                                   11  

                                                                                                       The viability of  

not require that the government act with any particular mental state. 



a  constitutional  takings  claim  thus  is  unaffected  by  tort  immunity,  which  is  not  

constitutional but statutory.12  



                    1.       The landowners allege a taking for public use.  



                   For the landowners to state a claim entitling them to just compensation  



under the Takings Clause, they must show that the State damaged their property and did  



                                                               

so for a public use.  There is no dispute in this case that the landowners' property was  



damaged, nor that the damage was caused by the State.  The parties do dispute, however,  



whether the damage was for a public use.   



                                                                                                            

                   The landowners concede that the burnouts were intended to protect their  



                                       

structures; their quarrel is with when and where the State set the burnouts.  They argue  



          9         Waiste, 10 P.3d at 1154.  



          10       Id.  



          11        Cannone v. Noey, 867 P.2d 797, 801 n.7 (Alaska 1994) ("If an owner is  



denied productive use of his or her property, that may be a taking regardless of the  

mental state of the involved government official, whether it be malicious, negligent, non- 

                                                                                         

negligent but mistaken, or non-negligent and not mistaken.").  



          12       State, Dep't of Health & Soc. Servs. v. Planned Parenthood of Alaska, Inc.,  



28 P.3d 904, 914 (Alaska 2001) ("[W]e cannot defer to the legislature when infringement  

                                                                                    

of a constitutional right results from legislative action." (quoting  Valley Hosp. Ass'n v.  

                                                                                                         

Mat-Su Coalition for Choice , 948 P.2d 963, 972 (Alaska 1997)) (internal quotation  

                                              

marks omitted)).  See also Thousand Trails, Inc. v. Cal. Reclamation Dist. No. 17, 21  

Cal.  Rptr.  3d  196,  204  (Cal.  App.  2004)  ("The  inverse  condemnation  action  is  

independent of any right to sue under traditional tort theories.").  



                                                            - 6 -                                                     6968
  


----------------------- Page 7-----------------------

that  the  burnouts  could  have  been  conducted  before  the  structures  were  directly  



threatened and could have been set on State-owned land instead of their private land.  In  



                                                                           

the landowners' view, the burnouts damaged their property for a public use because "the  



State encouraged the burn off of the wildlands between the Kantishna and Teklanika  



                                             

rivers as far south as possible as a public project to rejuvenate the wildlands," an action  



                                                                     

which "obviously serves to benefit the public demand for, inter alia, game animals for  



                                                                                                

human consumption."  They allege a second public use as well:  "to forestall the spread  



of  the  fire  to  State-owned  lands,  e.g.  the  Tanana  Valley  State  Forest  and  other  



commercial forests."  



                    The State takes two arguably contradictory positions in response to the  



                                                                 

landowners' takings claim.  In support of its argument that it acted within the lawful  



exercise of its police powers, the State asserts "that the burnouts were part of the larger  



                                    

fire management effort, and that public purposes of promoting the general health, safety,  



and welfare of the public animate the police powers."  On the other hand, the State  



                                                     

argues that the burnouts were "not necessary to the overall fire suppression effort" and  



were conducted solely to prevent the destruction of the landowners' private structures  



- not a public use at all.   



                                                                

                    We find more persuasive the State's first argument - that it acted within  



                                                                                       

the lawful exercise of its police powers. The United States Supreme Court has described  



                                                                         

the public use requirement of the federal Takings Clause as "coterminous with the scope  



                                                  13  

                                                      One important aspect of the police power is the  

of a sovereign's police powers." 



                                                                                                 

suppression and prevention of fires;  indeed, "[p]erhaps the most striking application of  



          13  

                                                                               

                    Haw.  Housing  Auth.  v.  Midkiff ,  467  U.S.  229,  240  (1984);  see  also  

Ruckelshaus v. Monsanto Co. , 467 U.S. 986, 1014 (1984).  



                                                             - 7 -                                                          6968  


----------------------- Page 8-----------------------

the   police   power   is   the   destruction   of   buildings   to   prevent   the   spread   of   a  

conflagration."14  



                   In  Alaska,  the  State's  entry  upon  private  land  "for  the  purpose  of  

                                                                                                             



preventing,  suppressing,  or  controlling  a  wildland  fire"  is  explicitly  authorized  by  

                                                                                      

statute.15   The legislature further emphasized the public nature of such activities in its  

               



enactment of a specific statutory immunity for actions taken while fighting wildfires  



                           16  

(discussed below).              Implicit in these provisions is the accepted wisdom that fighting  



wildfires, even on private property, is of benefit to the public as a whole regardless of  



whether only individual landowners are immediately benefitted.  In this case, putting  



                                                                                         

aside the issues of whether the burnouts were set at the right time and in the right place,  



there is no dispute that they were part of the State's efforts to contain and direct the  



                            

Railbelt Complex fires.  Because the burnouts were set in the exercise of the State's  



                                                                                  

police powers, the damage they caused was for a public use for purposes of the Takings  



Clause.   



                   We therefore need not reach the landowners' arguments that the public use  



                                      

can be found in alleged State purposes to maximize forage for wildlife or to protect  



                  

forests that were commercially valuable.  And we reject the State's argument that there  



is  no  public  benefit  or  use  in  conducting  burnouts  on  private  land  to  prevent  the  



destruction of private structures.   



          14       Northwestern Fertilizing Co. v. Vill. of Hyde Park , 97 U.S. 659, 669 (1878).
  



          15       AS 41.15.040.
  



          16       AS 41.15.045.
   



                                                            - 8 -                                                         6968  


----------------------- Page 9-----------------------

                    On  this  point,  the  United  States  Supreme  Court's  decision  in  Hawaii  



                                           17  

                                                                                                   

Housing Authority v. Midkiff                  is helpful.  One issue was whether the condemnation of  



                                                                                 

private  property  was  for  a  public  use  when  it  was  made  under  a  Hawaii  law  that  



                                                                     

transferred ownership to other private parties, the long-term lessees, in an effort to break  



                                                                                                        

up historic oligarchies.  According to the Supreme Court, "[t]he mere fact that property  



taken  outright  by  eminent  domain  is  transferred  in  the  first  instance  to  private  



                                                                                                                18 

beneficiaries does not condemn that taking as having only a private purpose."                                       It quoted  



its  earlier  decisions  for  the  propositions  that  "[i]t  is  not  essential  that  the  entire  



                                                                            

community, nor even any considerable portion, . . . directly enjoy or participate in any  



                                                                                     19 

                                                                                        and "what in its immediate  

improvement in order [for it] to constitute a public use"; 



                                                                                        

aspect [is] only a private transaction may . . . be raised by its class or character to a public  



           20  

                 The  Court  also  noted  the  great  deference  courts  show  to  the  legislature's  

affair."                                                                                                 

determination that certain measures involve a public use.21  



                    Here, too, the State's argument that the individual landowners benefitted  



- and perhaps solely benefitted - from the burnouts on their property does not dilute  

                                                                                              



the  evident  public  purpose  of  the  State's  firefighting  activity.    A  similar  issue  was  

                                                                                   



          17        467 U.S. at 243-44.  



          18        Id.  



          19        Id. at 244 (second and third alterations in original) (quoting Rindge Co. v.  



Los Angeles Cnty. , 262 U.S. 700, 707 (1923)) (internal quotation marks omitted).  



          20        Id.   (alterations in original)           (quoting Block v. Hirsh , 256 U.S. 135, 155  



(1921)) (internal quotation marks omitted).  



          21        Id.  See also Mountain Water Co. v. Mont. Dep't of Pub. Serv. Regulation,  

                                                                                                

919 F.2d 593, 599-600 (9th Cir. 1990) (explaining Hawaii Housing and noting that "[a]  

taking satisfies the constitutional public use requirement if it advances a 'conceivable  

                                                                   

public purpose' and regardless of whether it succeeds in realizing that purpose").  



                                                             - 9 -                                                       6968
  


----------------------- Page 10-----------------------

                                                                                       22  

presented in Town of Gila Bend v. Walled Lake Door Co.                                     The Arizona Supreme Court  



considered an argument that a town's contract to construct a water main to a factory  



                                      

building violated a state constitutional provision prohibiting public investment in private  



                                                                                                       

corporations.  The court rejected the argument, observing in part that "the fact that the  



                                                                          

Company stands to be directly benefited in the event that a fire should occur at its plant  



                                                                                                           

and will be indirectly benefited by reduced fire insurance premiums[] is of absolutely no  



                       23  

                           The court concluded, "There can be no doubt but that the supplying of  

consequence."                                                                                           



water for purposes of preserving and protecting lives and property is a 'public purpose'  

                                                                                                              

and one which will provide a direct benefit to the public at large."24  



                                                                  

                     We recognize that precedent can lead us in different directions.  In National  



                                                                                                       

Board of YMCA v. United States , the Supreme Court created what came to be known as  



                                                                                     

the "intended beneficiary" rule, by which government action taken primarily to defend  

                                                                                                            25  During riots in  

private property from damage does not result in a compensable taking. 



the  Panama  Canal  Zone,  the  Army  occupied  the  petitioners'  buildings,  which  were  

                                                          



                                                                                26  

heavily damaged during the fighting that followed.                                  Although the petitioners argued  



that the Army used their buildings "as part of a general defense of the Zone as a whole,"  

                                                                                                            



          22         490 P.2d 551 (Ariz. 1971).  



          23         Id. at 555-56.  



          24         Id. at 556.  See also Concerned Citizens for Responsible Gov't v. W. Pt.   



Fire Prot. Dist. , 127 Cal. Rptr. 3d 783, 791 (Cal. App. 2011),                                review granted, 262 P.3d  

853 (Cal. 2011) ("Fire suppression, like bus transportation or police protection, is a  

classic  example  of  a  service  that  confers  general  benefits  on  the  community  as  a  

            

whole."); Verizina v. City of Hartford, 138 A. 145, 146 (Conn. 1927) ("A fire department  

                                                                                                                

engaged in extinguishing fires is performing a governmental duty for the general good.").  



          25         395 U.S. 85 (1969).  



          26         Id. at 87-88.  



                                                               -  10 -                                                        6968
  


----------------------- Page 11-----------------------

the Court concluded that "[t]he stipulated record . . . demonstrates that the troops were     



                                                                                27  

acting primarily in defense of petitioners' buildings."                             



                    Relying on the purpose of the federal Just Compensation Clause - "to bar  

                                  



Government from forcing some people alone to bear public burdens which, in all fairness  



and justice, should be borne by the public as a whole" - the Supreme Court held that  

                                                                        28  It acknowledged that "any protection  

the clause did not apply to the petitioners' losses. 



                                                                                       29  

of private property also serves a broader public purpose."                                 But it went on to say that  

                                     



                    where, as here, the private party is the particular intended  

                    beneficiary   of   the   governmental   activity,   'fairness   and  

                    justice' do not require that losses which may result from that  

                                                                                                 

                    activity 'be borne by the public as a whole,' even though the  

                                                          

                    activity  may  also  be  intended  incidentally  to  benefit  the  

                    public.  Were it otherwise, governmental bodies would be  

                                                                                                

                    liable  under  the  Just  Compensation  Clause  to  property  

                                                        

                    owners  every  time  policemen  break  down  the  doors  of  

                                                                                         [30] 

                    buildings to foil burglars thought to be inside.  



That  the  petitioners'  damage  was  not  directly  caused  by  the  government  made  no  



                                                            

difference  to  the  Court's  analysis:                      "[P]etitioners  would  not  have  a  claim  for  



                                                                           

compensation under the Fifth Amendment even if they could show that damage inflicted  



                                                                                        31  

by rioters occurred because of the presence of the troops."                                 



          27        Id. at 90.  



          28        Id. at 89.  



          29        Id. at 92.  



          30        Id. (citations omitted).  



          31        Id. at 89.  



                                                             -  11 -                                                       6968
  


----------------------- Page 12-----------------------

                    We do not believe that  YMCA's "intended beneficiary" test adequately  



                                                                                    32  

reflects the broad protection of Alaska's Takings Clause.                               A New Jersey appellate court   



recently identified several of the test's shortcomings, most importantly that it "forces     



courts to be 'caught up in an identification and evaluation of the primary beneficiary,'  



when,  in  reality,  'the  intended  beneficiary  of  police  activity  is  always  the  general  



              33  

                  We note further that the danger the Supreme Court identified in recognizing  

public.' "                                                                           



a  right  to  compensation  under  the  Fifth  Amendment  when  a  private  party  is  "the  

             



particular intended beneficiary of the government activity" - that it would make the  



government  liable  to  the  owners  "every  time  policemen  break  down  the  doors  of  

buildings to foil burglars thought to be inside"34 - ignores the doctrine of necessity,  



discussed below.  



                         

                    In  this  case,  when  the  State  conducted  burnouts  on  the  landowners'  



properties, it was exercising an essential aspect of its police power.  We conclude that  



                                                     

this is sufficient to show a public use, whether the burnouts were intended to benefit  



                                                                                    

primarily other State lands, as the landowners allege, or primarily the landowners, as the  



State alleges.  



          32        "We  liberally  interpret  Alaska's  Takings  Clause  in  favor  of  property  



owners, whom it protects more broadly than the federal Takings Clause."   Waiste v.  

State, 10 P.3d 1141, 1154 (Alaska 2000); see also Vanek v. State, Bd. of Fisheries , 193  

               

P.3d 283, 288 (Alaska 2008) ("The Alaska Constitution contains a broader conception  

                                              

of compensable takings" than the Fifth Amendment of the federal constitution.).  



          33  

                                                                     

                    Simmons v. Loose, 13 A.3d 366, 389 (N.J. Super. App. Div. 2011) (quoting  

C. Wayne Owen, Jr., Everyone Benefits, Everyone Pays:  Does the Fifth Amendment  

Mandate  Compensation  When  Property  is  Damaged  During  the  Course  of  Police  

                                                                                                 

Activities? , 9 WM .  &  MARY BILL RTS . J. 277, 295 (2000)).  



          34        Nat'l Bd. of YMCA , 395 U.S. at 92.  



                                                             -  12 -                                                       6968
  


----------------------- Page 13-----------------------

                    2.	      The  burnouts  conducted  by  the  State  do  not  constitute  a  

                             compensable  taking  if  they  were  justified  by  the  doctrine  of  

                             necessity.  



                                                       

                    Regardless of whether the State damaged the landowners' property for a  



                                                                                          

public use, the landowners have no constitutional right to just compensation if the State's  



                                                                                   

actions were justified by the doctrine of necessity.  But given the broad protections of  



                                       

Alaska's Takings Clause, we decline to hold that every valid exercise of the police power  



is justified by the doctrine of necessity and results in a noncompensable taking.  



                    In  granting  summary  judgment  to  the  State  on  the  takings  claims,  the  



superior court found in effect that necessity was implicit in the State's exercise of its  



                                                    

police power.  The court reasoned that it was pursuant to the State's police power that  



                                                                                                        

the legislature enacted AS 41.15.040, the statute granting firefighters access to private  

property for the purpose of fighting fires,35 and that the State acted pursuant to this  



statutory  authority  when  it  set  burnouts  on  the  landowners'  property.    The  court  



                                                                                   

reasoned:  "Wildfire suppression activities such as those authorized by AS 41.15.040 are  



                                                                                 

clear  examples  of  the  valid  exercise  of  state  police  power  for  the  protection  of  its  



citizenry and natural resources, and therefore no compensation is due when property is  



          35	       The statute provides:   



                    Upon approval by the commissioner or an authorized agent,  

                                                                               

                    an employee of the division of lands, or of any organization  

                                                                            

                    authorized  to  prevent,  control,  or  suppress  a  fire  or  a  

                    destructive  agent,  and  others  assisting  in  the  control  or  

                    suppression of a fire upon request of an officer or employee  

                                                                       

                    of the United States or the state may at any time enter upon  

                    any  land,  whether  publicly  or  privately  owned,  for  the  

                    purpose of preventing, suppressing, or controlling a wildland  

                                                      

                    fire or a destructive agent.  



                                                            -  13 -	                                                    6968
  


----------------------- Page 14-----------------------

                                     

damaged pursuant to the prevention, suppression, or control of wildland fires."  The State  



essentially adopts the superior court's analysis on this appeal.  



                                                                                                                         

                    Firefighting is undoubtedly an exercise of the State's police power, as we  



                                                                                                     

acknowledge above.  But we decline to hold that the police power is coextensive with  



                                                   

the doctrine of necessity, i.e., that because firefighting is an exercise of the police power,  



all  damage  caused  during  the  State's  firefighting  activities  is  per  se  necessary  and  



therefore not compensable under the takings clause.  We agree with an observation of  



a federal claims court:  "If the police power exception to just compensation is limited  



only by the sovereign power of the Government, . . . it becomes the exception which  



                                                            36  

                                                                          

swallows the rule, an intolerable result."                      In the context of firefighting, as we explain  



                                                                                                   

below, the doctrine of necessity requires that there be an imminent danger and an actual  



                                                                              

emergency giving rise to actual necessity; otherwise, damage may be compensable under  



                                                                           

the Takings Clause even though it is caused by the State's otherwise valid exercise of the  



police power.   



                    We have held that "[t]he distinction between eminent domain and the state's  



                                                                      37  

                                                                          Where one ends and the other begins,  

police power is well established legal doctrine." 



                                                         

                           

however, may be difficult to define.   Eminent domain is "the right of a government to  



take  and  appropriate  private  property  to  public  use[]  whenever  the  public  exigency  



                                             

requires it; which can be done only on condition of providing a reasonable compensation  



              38  

                    whereas   the   police   power   may   allow   the   State   "consistently   with  

therefor,"                       



          36        Morton Thiokol, Inc. v. United States , 4 Cl. Ct. 625, 630 (1984).  



          37        Waiste v. State, 10 P.3d 1141, 1155 (Alaska 2000).  



          38        Wernberg   v.   State,   516   P.2d   1191,    1195    (Alaska   1973)   (quoting  



Commonwealth v. Alger, 61 Mass. (7 Cush.) 53, 85 (1851)) (internal quotation marks  

omitted).  



                                                            -  14 -                                                      6968
  


----------------------- Page 15-----------------------

                                                          

constitutional requirements [to] acquire private property interests in a manner that does  



                                  39                                                                                40 

                                            

not constitute a taking,"           i.e., without having to provide reasonable compensation.                           In  



                                          

 Waiste v. State, for example, we held that the "government seizure of property suspected  



                                                                                                            

of having been used to break the law falls squarely within the police power" and "is not  



an exercise of the State's constitutional taking power for which the Takings Clause  



                                                                   41  

triggers the requirement of just compensation."                        



                                                                                                           

                   But the distinction between eminent domain (compensable) and a valid  



                                                                                             42  

                                                                                                 The United States  

exercise of the police power (not compensable) is not a sharp one. 



Supreme Court has repeatedly recognized that there are limits beyond which a state's  



                                                                                                  43 

                                                                                                      Defining those  

otherwise valid exercise of its police power may require compensation. 



                                                               

limits in the context of firefighting activities is our immediate task; we do so by reference  



                                                                                                        44  

to the doctrine of necessity, which has a long history in the common law.                                    



          39       Waiste, 10 P.3d at 1155  (quoting Hughes v. State ,   838  P.2d   1018, 1037  



(Or. 1992)) (internal quotation marks omitted).  



          40       R   & Y, Inc. v. Municipality of Anchorage, 34 P.3d 289, 297-98 (Alaska  



2001).  



          41       Waiste, 10 P.3d at 1155.  



          42       See  Penn.  Coal  Co.  v.  Mahon,  260  U.S.  393,  416  (1922)   ("[T]his  is  a  



question of degree - and therefore cannot be disposed of by general propositions.").  



          43       Lucas v   . S.C. Coastal Council, 505 U.S. 1003, 1021-28 (1992) (tracing the  



judicial development of  the di           stinction between compensable takings for public use and  

attempts to proscribe uses of prop              erty without compensation through the police power,  

and making note of "Mahon 's affirmation of limits to the noncompensable exercise of  

the police power"); Mahon , 260 U.S. at 413 ("[O]bviously the implied limitation [of the  

police  power]  must  have  its  limits  or  the  contract  and  due  process  clauses  [of  the  

                               

Constitution] are gone.").  



          44       See  generally  Derek  T.  Muller,   "As  Much  Upon  Tradition  As  Upon  



                                                                                                       (continued...)  



                                                         - 15 -                                                    6968
  


----------------------- Page 16-----------------------

                     Public necessity acts as a defense to property torts such as trespass and  



                                                                                                             

conversion and allows a person to enter land and destroy property where there is "[a]  



                                                                    45  

                                                                         Public necessity "completely excuses the  

necessity that involves the public interest."  



                                   46 

                                                                                                       

defendant's liability."                While the privilege of public necessity is an individual one, state  



                                      47  

                                          Thus, the state generally does not have to pay compensation  

officials can exercise it. 



                                                                                                                      

where  "the  destruction  or  damage  was,  or  reasonably  appeared  to  be,  necessary  to  



                                                                                                                                       48  

                                                                     

prevent an impending or imminent public disaster from fire, flood, disease, or riot." 



                                                                                                                      

Almost  all  cases  that  discuss  public  necessity  note  that  it  generally  includes  the  



                                                                                              49  

destruction of buildings or land to stop the spread of a fire.                                     



           44(...continued)  



Principle":  A  Critique  of  the  Privilege  of  Necessity  Destruction  Under  the  Fifth  

Amendment , 82 NOTRE DAME L.  REV .  481 (2006).  



           45        BLACK 'S LAW DICTIONARY  1131 (9th ed. 2009).  



           46        Id.  



           47         1 JULIUS  L. SACKMAN, NICHOLS  ON  EMINENT  DOMAIN 1.43[2] (3d ed.   

                                                                                  



2014) ("If the individual who enters and destroys private property happens to be a public   

officer whose duty it is to avert an impending calamity, the rights of the owner of the     

property to compensation are no greater than in the case of a private individual.")  



           48         City of Rapid City v. Boland, 271 N.W.2d 60, 66 (S.D. 1978) (citations  



omitted).  



           49  

                                              

                     See, e.g., Ralli v. Troop, 157 U.S. 386, 405 (1895) ("By our law, indeed,  

                                    

either public officers or private persons may raze houses to prevent the spreading of a  

                                          

conflagration.    But  this  right  rests  on  public  necessity,  and  no  one  is  bound  to  

compensate for or to contribute to the loss, unless the town or neighborhood is made  

liable by express statute."); Field v. City of Des Moines , 39 Iowa 575, 577 (1874) ("That  

                                                                                                              

any persons may 'raze houses to the ground to prevent the spreading of a conflagration,'  

                                                     

without incurring any liability for the loss to the owner of the houses destroyed, is a  

                                                                                                                   

doctrine well established in the common law.");  Hale v. Lawrence, 21 N.J.L. 714, 730  

                                          

                                                                                                                     (continued...)  



                                                                 -  16 -                                                          6968
  


----------------------- Page 17-----------------------

                    When  the  United  States  and  state  constitutions  were  adopted,  courts  



                                                                                               

continued to use public necessity as an implicit exception to  the requirement of just  



                      50  

                               

compensation.             A seminal case is Bowditch v. City of Boston , in which the Supreme  



                                                    

Court explained the common law roots of the necessity doctrine:  "At the common law  



every one had the right to destroy real and personal property, in cases of actual necessity,  



                                                                            

to prevent the spreading of a fire, and there was no responsibility on the part of such  



                                                             51  

destroyer, and no remedy for the owner."                         It went on:  "In these cases the common law  



                                                             

adopts the principle of the natural law, and finds the right and the justification in the  



                                          52  

                                                                                                        

same imperative necessity."                   Later cases affirmed the common law foundations of the  

necessity defense under similar circumstances.53  



          49(...continued)  



( N.J. 1848) ("[I]n a densely populated town, all may unite in destroying a building to  

                                             

stop a conflagration which threatens destruction to the rest."); Respublica v. Sparhawk ,  

                                          

1 U.S. (1 Dall.) 357, 363 (Pa. 1788) ("Houses may be razed to prevent the spreading of  

                                              

fire, because [of] the public good."); The Case of the King's Prerogative in Saltpetre,  

                                                                             

(1606) 77 Eng. Rep. 1294 (K.B.) (analogizing taking saltpeter from a private landowner  

during wartime to destruction to prevent the spread of fire).  



          50        See  Muller,  supra  note  44,  at  508-10;  see  also  Lucas  v.  S.C.  Coastal  



Council, 505 U.S. 1003, 1029 n.16 (1992) (recognizing that there is no compensable  

taking when the state's destruction of property is done " 'in cases of actual necessity, to  

prevent the spreading of a fire' or to forestall other grave threats to the lives and property  

                                                                                                         

of others").  



          51        101 U.S. 16, 18 (1879).  



          52        Id. at 19.  



          53        See, e.g., Lucas , 505 U.S. at 1029 n.16 (citing with approval Bowditch , 101  



                                                             

U.S. at 18-19);  United States v. Caltex (Phil.), Inc., 344 U.S. 149, 154 (1952) ("[T]he  

                                                                                                         

common law ha[s] long recognized that in times of imminent peril - such as when fire  

                                                                             

threatened  a  whole  community  -  the  sovereign  could,  with  immunity,  destroy  the  

                                                                                                              (continued...)  



                                                             -  17 -                                                       6968
  


----------------------- Page 18-----------------------

                         The Federal Circuit recently discussed the necessity doctrine in  TrinCo  



                                                             54  

                                                                  Wildfires were burning parts of the Shasta-Trinity  

Investment Co.  v. United States. 



National Forest in California.  The Forest Service intentionally lit fires on and adjacent   



to TrinCo's properties in order to deprive the fires of fuel, thereby destroying nearly two               



thousand  acres of TrinCo's timber, worth over $6 million.  TrinCo sued the United  



                               

States, alleging a taking, though unlike the landowners here they alleged that the fires  



                                                                                                                                                               55  

                                                                                                    

would never have reached their property at all were it not for government intervention. 



                         The  federal  claims  court  granted  the  United  States'  motion  to  dismiss,  

                                                                                                                



reasoning that "the doctrine of necessity absolves the Government from liability for any  



                                                                                                             56  

                                                                                                                  On appeal, however, the  

taking or destruction of property in efforts to fight fires."                                                                             



Federal Circuit held that the lower court had "misapprehended the reach of the doctrine  

                                                                                                                                            



                          57  

of  necessity."                  It  held  that  "extend[ing]  the  doctrine  of  necessity  to  automatically  

                                               



             53(...continued)  



property  of  a  few  that  the  property  of  many  and  the  lives  of  many  more  could  be  

                                             

saved."); TrinCo Inv. Co. v. United States, 722 F.3d 1375, 1377 (Fed. Cir. 2013) ("This  

                                                                                                  

principle, absolving the State . . . of liability for the destruction of real and personal  

                                                                                                                            

property in cases of actual necessity, to prevent . . . or forestall . . . grave threats to the  

                                                                                               

lives and property of others, is commonly referred to as 'the doctrine of necessity' or the  

 'necessity defense.' " (omissions in original) (internal quotation marks omitted) (quoting  

                                                                                                                                  

Lucas , 505 U.S. at 1029 n.16 ); see also State v. Olsen , 299 N.W.2d 632, 634 (Wis. App.  

                                                                                                                                      

 1980) (An example of the doctrine of necessity is "[a] person who, seeking to stop the  

                                                                                                       

spread of a fire, razes a building in order to save a town." (citing W. L 

                                                                                                                                          AFAVE  &   A.  

S                      

   COTT , JR ., HANDBOOK ON CRIMINAL LAW at 384 (Hornbook Series 1972))).  



             54          722 F.3d at 1377-80.  



             55          Id. at 1377.  



             56          Id.  



             57          Id. at 1378.  



                                                                            - 18 -                                                                      6968
  


----------------------- Page 19-----------------------

                                                                                                     

absolve the Government's action in any case involving fire control stretches the doctrine  

too far."58  



                                                                         

                    The Federal Circuit found no law directly on point, but it concluded that  



Supreme Court precedent required "that the doctrine of necessity may be applied only  



when  there  is  an  imminent  danger  and  an  actual  emergency  giving  rise  to  actual  



                 59  

necessity."            It  noted  that  in  Bowditch ,  the  City  of  Boston  was  not  liable  when  its  



                                                                                          

firefighters demolished a building "at a place of danger in the immediate vicinity [of a  



                            

fire], to arrest the spreading of the fire," and "the measure . . . stopped the progress of the  



        60  

fire."        It  noted  that  in  Caltex,  the  United  States  was  not  liable  for  the  Army's  



                                                                                          

destruction of privately owned oil facilities in Manila "in the face of their impending  



                                      

seizure by the enemy," where Japanese troops were marching into the city and their  



                                                 61  

planes  were  bombing  the  area.                      It  cited  another  wartime  seizure  case,  Mitchell  v.  



                                                                                      

Harmony , involving the Army's confiscation and loss of a trader's goods during the war  



                     62  

with  Mexico:              "[F]or  a  taking  to  be  justified  during  wartime  the  'danger  must  be  



immediate and impending' or the 'necessity urgent . . . such as will not admit delay'  



          58        Id.  



          59        Id. (citing Bowditch v. City of Boston                  , 101 U.S. 16, 16-19 (1879); Ralli v.  



Troop, 157 U.S. 386, 405 (1895);                  United States v. Caltex (Phil.), Inc.               , 344 U.S. 149, 151- 

56 (1952); Mitchell v. Harmony , 54 U.S. 115, 135 (1851)).  



          60        Id. (alterations in original) (quoting Bowditch , 101 U.S. at 16) (internal  



quotation marks omitted).  



          61        Id. at 1378-79 (citing Caltex, 344 U.S. at 151).  



          62        Mitchell , 54 U.S. at 129.  



                                                              -  19 -                                                      6968
  


----------------------- Page 20-----------------------

because 'it is the emergency that gives the right  [to  the Government to take private  

                                                                                    

property], and emergency must be shown to exist before the taking can be justified.' "63  



                    Applying  the  test  for  necessity  that  it  extrapolated  from  this  case  law  



-"imminent danger and an actual emergency giving rise to actual necessity" - the  

Federal Circuit reversed the dismissal of TrinCo's takings claim.64  It noted that the facts  



                                                                                                                    

as alleged in TrinCo's complaint did not demonstrate "the kind of imminent danger and  



                             

actual emergency  posed by a fire burning in a populated city, as in Bowditch, or an  

                                                       65  It held that "[i]t is certainly plausible that the Iron  

invading enemy army, as in Caltex."                                                                                



Complex fire did not pose an imminent danger or actual emergency necessitating the  

                                                               



destruction of such a sizable portion of TrinCo's property," and that discovery could  



                                                              

show "why the Plaintiff's property had to be sacrificed, as opposed to other property,  



                                                                                   66  

including other portions of the National Forest itself."                               It concluded:  "It would be a  



                             

remarkable  thing  if  the  Government  is  allowed  to  take  a  private  citizen's  property  

without compensation if it could just as easily solve the problem by taking its own."67  



                                                                               

                    We agree with the analysis in TrinCo.  Here, the superior court considered  



only  whether  the  State's  actions  were  taken  within  the  context  of  its  general  police  



power.  But a taking of private property does not escape application of the Takings  



                                                                       

Clause simply because it occurs in the course of the State's firefighting activities; to be  



                                                                                              

noncompensable, the taking must be justified by the doctrine of necessity.  The doctrine  



          63         TrinCo, 722 F.3d at 1379 (alteration in original) (quoting                           Mitchell , 54 U.S.  



at 135).  



          64        Id. at 1378, 1380.  



          65        Id. at 1380.
  



          66        Id.
  



          67        Id.
  



                                                              - 20 -                                                        6968
  


----------------------- Page 21-----------------------

                                                                                                                              

applies only if the State demonstrates the existence of "imminent danger and an actual  

emergency giving rise to actual necessity," an inquiry that is fact-specific.68  



                       This inquiry should not devolve into an after-the-fact evaluation of the  



wisdom  of  the  fire-fighting  policies  and  tactical  choices  that  preceded  the  taking,  



                                                            

decisions that in a tort action are immunized by AS 41.15.045.  Whether a taking is  



                                                                                                                                   

necessary must be judged at the time the taking occurs.  The essence of the doctrine is  



                                                                              

that the government is acting "under pressure of public necessity and to avert impending  



                                                                                                                                69  

                                                                                                                                     It is that  

peril" and chooses to damage private property as the lesser of two evils. 



choice, in that moment, for which necessity may provide a defense.        



                                                                                                                            

                       The facts of this case may support applying the doctrine of necessity.  But  



                                                                                                              

the parties' evidence must be evaluated in the context of whether there was an "imminent  



                                                                                                                

danger and an actual emergency giving rise to actual necessity," a task we leave to the  



 superior court in the first instance.  We reverse the grant of summary judgment to the  



                                                                                                                         

 State on the landowners' claim under the Takings Clause of the Alaska Constitution and  



                                                                                                                               

remand it to the superior court for further consideration; but in so doing we do not decide  



whether the evidence already in the record would preclude another grant of summary  



judgment for the State.  



            68         See United State v. Caltex (Phil.), Inc., 344 U.S. 149, 156 (1952) ("No rigid   



rules can be laid down to distinguish compensable losses from noncompensable losses.           

Each case must be judged on its own facts."); Mitchell , 54 U.S. at 134 ("It is impossible                              

to define the particular circumstances of danger or necessity in which this power may be  

lawfully exercised.  Every case must depend on its own circumstances.").  



            69         Customer  Co.  v.  City  of  Sacramento,  895  P.2d  900,  910  (Cal.  1995)  



(quoting Holtz v. Superior Court , 475 P.2d 441, 446 (Cal. 1970)).  



                                                                      - 21 -                                                               6968
  


----------------------- Page 22-----------------------

          B.	       The Superior Court Did Not Err In Dismissing The Landowners' Tort  

                                                                                             

                    Claims.  



                    The landowners argue that the superior court also erred in dismissing their  

                                                                                             



tort claims against the State, but on this issue we affirm the judgment of the superior  



court, finding the claims barred by statutory immunity.  



                    1.	      Alaska Statute 41.15.045, not AS 09.50.250, controls whether the  

                              State's firefighting activities are immune from tort liability.  



                    The   superior   court   conducted   a   two-step   analysis   of   the   State's  



                                                                   

governmental immunity defense, addressing first the discretionary immunity provided  



                                  

by AS 09.50.250 and then addressing the specific firefighting immunity provided by  

AS 41.15.045.  We hold that the latter statute controls.70  



                    Alaska Statute 09.50.250 precludes tort claims against the State that are  



                     

"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."  We discussed this statute in the  



                                                                                

context of fighting wildfires in Angnabooguk v. State, in which we specifically rejected  



the State's claim that all such activities were immune as necessarily involving policy  

                                                                 71   Focusing on AS 09.50.250, our analysis  

choices or some other exercise of discretion.                                       



began with the well-established distinction between planning (that is, discretionary) and  

                                                                                                      

operational decisions for purposes of determining whether statutory immunity applies.72  

                                                                                                    



We noted our consistent holdings that "the State's decision to engage in an activity is an  



          70        Because we conclude that only AS 41.15.045 applies, we reject the State's   



argument that the landowners waived the immunity issue by not appealing from the  

superior court's holding that the State was also protected by AS 09.50.250.   



          71        See 26 P.3d 447, 454-55 (Alaska 2001).  



          72        See id. at 455-56.  



                                                            - 22 -	                                                     6968
  


----------------------- Page 23-----------------------

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."73  We noted that "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  



                                                                                           74  

                                                                                                                    

charge," and we gave as one example the setting of backfires.                                  On the other hand, we  



                                                                                             

noted that decisions considered operational could include the State's failure to prevent  



employees  from  working  under  the  influence  of  drugs  or  alcohol,  failure  to  build  a  



firewall, failure to post lookouts during a burnout, and failure to conduct an adequate  



             75  

                                                    

mop-up.          We remanded the case to the superior court for further factual development  



as to which of the tactical firefighting decisions at issue were operational and which were  

planning and therefore immune.76  



                    Following Angnabooguk , the legislature enacted an immunity statute that  



provides   broad   tort   immunity   for   firefighting   activities   without   regard   to   the  



                                                                                                      

"planning/operational" distinction drawn in the context of the more general immunity  



                                                                 

statute, AS 09.50.250. The new statute, AS 41.15.045(a), provides immunity to the State  



                                                                                  

and other governmental entities from any "civil action for damages for death, personal  



                                                                                

injury, or property damage that results from an act or omission in performing or failing  



to  perform  activities  or  duties  arising  out  of  prevention,  monitoring,  control,  or  



suppression  of  fires  authorized  to  be  performed  under  AS  41.15.010-41.15.170  



                                                                   

[addressing wildland and forest fires]."  The new statute's only exception is for actions  



          73        Id. at 456.  



          74        Id. at 459.  



          75        Id.  



          76        Id.  



                                                            - 23 -                                                       6968
  


----------------------- Page 24-----------------------

for  damages  resulting  from  "intentional  misconduct  within  the  course  and  scope  of  



                     

employment  or  agency  and  with  complete  disregard  for  the  safety  and  property  of  



            77  

others."        



                    Legislative history shows that AS 41.15.045 was adopted in direct response  



     

to our decision in Angnabooguk and the law of governmental immunity as we applied  



                                                         78  

                                                                                                                  

it to firefighting activities in that case.                 The governor's sponsor statement, and his letter  



                    

transmitting the proposed bill to the legislature, reported that two of this court's 2001  

              79 "ruled that the State of Alaska may be sued and held liable for tort claims for  

decisions                                                                                                       



losses  due  to  fire  suppression  efforts"  and  that  "[t]hese  decisions  open  the  door  to  

                                                                            

significant financial exposure to the state for losses due to fires."80  The transmittal letter  

                                               



and sponsor statement stated that "[d]ecisions regarding forest management related to  



fire  control  and  suppression  should  be  prompted  by  sound  forestry  and  firefighting  



                                                                                                   

principles, rather than concerns regarding possible tort liability," and that "[l]itigation of  



                                                         

such  claims  inherently  disrupts  the  division  of  forestry's  day-to-day  operations  and  



          77        AS 41.15.045(b).  



          78         Sectional  Analysis   of  Committee   Substitute   for   H.B.  245,  23d  Leg.,  

1st  

    Sess., available at Alaska Leg. Microfiche Collection No. 10825.  



          79        Besides Angnabooguk , the letter apparently refers to  Bartek v. State, Dep't  

                                                                       

of Natural Res., Div. of Forestry, 31 P.3d 100, 101 (Alaska 2001), which we observed  

                  

in Bartek was "closely related" to Angnabooguk and presented the same immunity issues.  

                

Because we decided those issues in Angnabooguk , in Bartek we decided only issues of  

                                                                                              

class certification.  See also STATE OF ALASKA ,  DEP 'T OF LAW ,   OP .  ATT 'Y  GEN ., 2003  

WL 22718859 (June 2, 2003) at *4 ("These sections are intended to overrule holdings  

                                                   

of the Alaska Supreme Court in the cases of Angnabooguk  . . . and Bartek . . . that the  

                                                                                            

State is not immune and may be sued for its firefighting activities.").  



          80        2003 House Journal 782-83.  



                                                              - 24 -                                                        6968
  


----------------------- Page 25-----------------------

                                                                                            81  

diverts substantial state resources to defend such lawsuits."                                   The proposed bill was  



                                                                                                     

intended to correct this perceived problem; in a contemporaneous sectional analysis of  



                                     

the bill, the Department of Law observed that the broad firefighting immunity provision  



                                                                                                                      

was  included  in  order  to  "override[]  the  decision  of  the  Alaska  Supreme  Court  in  



Angnabooguk  .  .  .  that,  because  the  state  legislature  had  not  explicitly  made  all  



                    

firefighting  activities and decisions immune from suit, both the state and individual  



                                                                                                    82  

firefighters could be held liable for damage caused by a wildfire."                                     



                    In sum, as we held in Angnabooguk , AS 09.50.250 immunizes tactical  



firefighting  activities  only  to  the  extent  they  may  be  categorized  as  discretionary  



                                                                                                                                83  

planning decisions; it does not immunize firefighting activities that are operational.                                              



Alaska  Statute  41.15.045,  on  the  other  hand,  immunizes  all  firefighting  activities  



regardless of the planning/operational distinction, with a limited exception for intentional  



                                                                                         

misconduct.  As the two statutes conflict, we apply the one that is both more specific and  



                                  

later  in  time  -  AS  41.15.045,  the  2003  law  that  addresses  firefighting  activities  



                   84  

specifically.            



          81        Id.  



          82         Sectional  Analysis   of  Committee   Substitute   for   H.B.  245,  23d  Leg.,  



  st 

                                             

 1   Sess., available at Alaska Leg. Microfiche Collection No. 10825.  See also STATE OF  

ALASKA ,  DEP 'T OF LAW ,  OP .  ATT 'Y GEN ., 2003 WL 22718859 (June 2, 2003) at *4 (The  

immunity provisions "reassert the State of Alaska's sovereign immunity from claims  

arising out of fire fighting and related activities and are intended to immunize the entire  

                                                                                                                      

class of fire fighting activities, with the limited exception of a civil action for damages  

                                                                                         

as a result of intentional misconduct within the course and scope of employment or  

agency and with complete disregard for the safety and property of others.").  



          83        26 P.3d 447, 458-59 (Alaska 2001).  



          84  

                                                                                    

                    See Nelson v. Municipality  of Anchorage, 267 P.3d 636, 642 (Alaska 2011)
  

("If one statutory 'section deals with a subject in general terms and another deals with
  

                                                                                                               (continued...)
  



                                                              - 25 -                                                       6968
  


----------------------- Page 26-----------------------

                   2.	       The  State's  conduct  does  not  fall  within  the  "intentional  

                             misconduct" exception of AS 41.15.045(b).  



                   Focusing on the firefighter immunity statute, the landowners argue that  



                                                                                                               

their claims satisfy its exception for "intentional misconduct within the course and scope  



of employment or agency and with complete disregard for the safety and property of  



           85  

                                                                         

others."       The landowners argue that (1) the State acted intentionally in conducting the  



                                                                                               

burnouts  on  their  properties;  and  (2)  burnouts  in  violation  of  the  State's  Full  



                                                                        

Management Option protection policy - which applies to the landowners' properties  



under  the  interagency  fire  protection  plan  -  constitute  misconduct.    The  Full  



Management Option protection policy has as its stated objectives (1) to control fires on  



the designated property "at the smallest acreage reasonably possible on initial attack  



                                                                                                                

without compromising fire fighter safety"; (2) to protect the property from the spread of  



                            

fires "burning in a lower priority management option"; and (3) to minimize damage on  



the property "commensurate with the values at risk."  



                           

                   The  landowners  acknowledge  that  the  "Plan  was  developed  to  enable  



appropriate  fire  suppression  decisions  'within  the  constraints  of  policy  and  land  



management objectives.' "  The landowners recognize that the objectives the State faces  



may be competing ones:  for example, the minimization of burning on properties given  



                                                                      

Full protection status and the maximization of burning for ecological purposes.  The  



landowners complain, however, that the State made the wrong choice between these  



          84(...continued)  



a part of the same subject in a more detailed way, the two should be harmonized, if  

                             

possible; but if there is a conflict, the specific section will control over the general.'. . .  

                                                                              

'[I]f two statutes conflict, then the later in time controls over the earlier.' " (quoting In  

                                                          

re Hutchinson's Estate, 577 P.2d 1074, 1075 (Alaska 1978); Allen v. Alaska Oil & Gas  

Conservation Comm'n, 147 P.3d 664, 668 (Alaska 2006))).  



          85       AS 41.15.045(b).  



                                                          - 26 -	                                                    6968
  


----------------------- Page 27-----------------------

objectives:  "the State's maximum acreage goal was prioritized and realized to its fullest  

                                                     



extent by means of deliberately damaging the Full fire protection properties."  Under the  

                                                                                                                    



landowners' theory, the State's deliberate election of one policy objective over another  

                                                                                 



constitutes misconduct.  



                                                                                        

                    As we observed in Angnabooguk , "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."86  When  



analyzing cases under AS 09.50.250, we "have recognized that if decisions require the  

                                                                                                    



state to balance 'the detailed and competing elements of legislative or executive policy,'  

                                            

they   nearly   always   deserve   protection   by   discretionary   function   immunity."87  



Furthermore, " '[d]ecisions about how to allocate scarce resources' will ordinarily be  

immune from judicial review."88  

                                                    



                    The decision on which the landowners base their misconduct argument -  

                                                                                              



allegedly a decision to prioritize a "maximum acreage goal" over the Full protection  

                                                                                                      



policy expressed in the interagency fire management plan - inescapably involves both  

                                                                                        



balancing executive policies and allocating limited resources.  Under AS 09.50.250,  



these  decisions  would  be  immune  as  discretionary  planning  activities.    Given  that  



AS 41.15.045 clearly expands the range of firefighting activities for which the State is  

                                                                                                   



immune,  it  would  be  unreasonable  for  us  to  conclude  that  activities  that  would  be  



          86        Angnabooguk v. State, Dep't of Natural Res., Div. of Forestry , 26 P.3d 447,  



456 (Alaska 2001) (emphasis added).  



          87        Guerrero ex rel. Guerrero v. Alaska Hous. Fin. Corp.                             , 123 P.3d 966, 977  



(Alaska 2005) (quoting Indus. Indem. Co. v. State , 669 P.2d 561, 563 (Alaska 1983)).  



          88        Id.  (quoting  Adams  v.  City  of  Tenakee  Springs ,  963  P.2d  1047,  1051  



(Alaska 1998)).  



                                                             - 27 -                                                        6968
  


----------------------- Page 28-----------------------

                                                   

immune under AS 09.50.250 lost their immunity with the enactment of AS 41.50.045  



                                                                                                

because of the "intentional misconduct" exception.  And because the landowners cannot  



                          

show intentional misconduct, we need not address the other elements of the exception:  



                                                                                          

whether the alleged misconduct occurred "within the course and scope of employment  



or agency and with complete disregard for the safety and property of others."  



V.        CONCLUSION  



                                                                                     

                    We AFFIRM the superior court's dismissal of the landowners' tort claims  



                                                 

and REVERSE the dismissal of their claims for just compensation under the Takings  



                                 

Clause of the Alaska Constitution.  We REMAND for further proceedings consistent  



with this opinion.  



                                                            - 28 -                                                      6968
  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC