Notice: This opinion is subject to formal
correction before publication in the Pacific
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THE COURT OF APPEALS OF THE STATE OF ALASKA
WARREN E. MAGNUSON, )
) Court of Appeals No. A-4369
Appellant, ) Trial Court No. 4MC-S91-25CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1271 - December 31, 1992]
)
Appeal from the District Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Hershel E. Crutchfield, Judge.
Appearances: R. Scott Taylor, Rice, Volland and
Gleason, P.C., Anchorage, for Appellant. Kimberly
A. Staten-Hayes, Assistant District Attorney,
Edward E. McNally, District Attorney, Anchorage,
and Charles E. Cole, Attorney General, Juneau, for
Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
COATS, Judge.
Warren E. Magnuson was convicted, based upon his plea
of no contest, of obstructing an airport and runway in violation
of AS 02.20.050. In entering his plea, Magnuson reserved his
right to appeal Judge Crutchfield's denial of his motion to
dismiss. Cooksey v. State, 524 P.2d 1251 (Alaska 1974).
Magnuson now appeals his conviction to this court. We reverse.
The facts of this case appear to be undisputed. Warren
Magnuson owns a mining claim on Gaines Creek which is
approximately twenty-five miles west of McGrath, Alaska.
Magnuson lives at the claim from May to October and operates his
gold mine. Magnuson has constructed an air strip which he uses
to fly in to his mining claim. During the winter months,
Magnuson closes his air strip. During the winter of 1990,
Magnuson closed his air strip by placing numerous fifty-five-
gallon steel drums and heavy motorized vehicles on the runway.
In October 1990, an Alaska State Trooper noticed that the landing
field was obstructed. As a result of the trooper's
investigation, the state charged Magnuson with a violation of AS
02.20.050 which provides as follows:
Obstructing airports and runways. (a) A
person may not place an object on the surface
of a public or private airport that because
of its nature or location might cause injury
or damage to an aircraft or person riding in
the aircraft.
(b) A person may not dig a hole, or
make any kind of excavation, or drive a sled,
tractor truck or any kind of vehicle upon the
surface of an airport that might make ruts,
or tracks, or add to an accumulation of
tracks so as to cause sufficient roughness of
the surface to endanger aircraft using the
airport.
(c) All acts prohibited in (a) and (b)
of this section also apply in their entirety
to any temporary airport or runway that has
been marked out on the frozen surface of a
stream or lake for the use of aircraft.
AS 02.15.260 defines "airport" as follows:
Definitions. In this chapter . . . (5)
"airport" means an area of land or water
which is used or intended for use for the
landing and take-off of aircraft, and any
appurtenant areas which are used or intended
for use for airport buildings or other
airport facilities or rights-of-way, together
with airport build-ings and facilities
located thereon; . . .
Magnuson moved to dismiss the charge against him. He
contended that AS 02.20.050 was designed to stop a person from
placing objects on a runway which, because of their inconspicuous
nature, "might cause injury or damage to an aircraft or person
riding in the aircraft." He contended that it was necessary for
him to close the runway for the winter to prevent thieves or
vandals from landing on the runway and taking or destroying
valuable property which he had at the mining claim. He claimed
that if the court interpreted AS 02.20.050 to apply to his
conduct, AS 02.20.050 would be unconstitutionally vague and would
otherwise interfere with several of his constitutional rights.
The state contended that the statutory meaning was
clear: a person could not obstruct either a public or private
airport. The state pointed out that in an emergency a pilot
might need to land on Magnuson's runway. The state pointed out
that no matter how obvious an obstruction might be in good
weather, in a snow storm or other emergency a pilot might not see
the obstruction and the obstruction "might cause injury or damage
to an aircraft or person riding in the aircraft." The state
argued that it was important to preserve emergency landing areas
in a sparsely populated state.
Judge Crutchfield denied Magnuson's motion to dismiss.
Judge Crutchfield concluded "that Mr. Magnuson acted in one of
the few ways that he could incur liability -- placing
obstructions on an airstrip that someone may have anticipated
utilizing as a last resort short of crash landing on the tundra."
We have very little information to rely on in
interpreting the statute other than the words of the statute
itself. The parties and Judge Crutchfield appear to have found
the only case in this state which discusses the statute, McLemore
v. Harris, 374 P.2d 410 (Alaska 1962), a civil case. In that
case, the supreme court stated:
The term "bush airfield" or "bush
airstrip" connotes in Alaska an unregulated
field for light aircraft. These fields
played an important part in the settlement
and development of the Territory of Alaska
and continue to do so under statehood. . . .
Sometimes they are located on private
property and at other times on the public
domain.
Id. at 410-11. The facts and discussion in McLemore, however,
are not particularly helpful for resolving the issues in this
case. In McLemore, the supreme court held that the trial court
could find that a defendant in a civil case had acted in
violation of the statute when he parked his truck on a bush
airfield. The court upheld a verdict for the plaintiff which was
based on an accident which occurred when the plaintiff landed his
airplane on the airfield and struck the defendant's truck.
However, in McLemore, the parties did not dispute the fact that
the airstrip in question was an operating airstrip and that the
defendant knew this.
We have consistently held that "ambiguities in criminal
statutes must be narrowly read and construed against the
government." State v. Andrews, 707 P.2d 900, 907 (Alaska App.
1985); Wylie v. State, 797 P.2d 651, 657 (Alaska App. 1990).
Although the state's interpretation of AS 02.20.050 is plausible,
and may constitute good policy, we do not believe that the
statute is sufficiently clear to allow the state to criminally
punish Magnuson's conduct. Alaska Statute 02.15.260 defines
"airport" as "an area of land or water which is used or intended
for use for the landing and take-off of aircraft. . . ." The
state concedes that Magnuson does not have to maintain his
property as an airport. The state concedes that he could build a
house on the strip, plant trees, or make some other use of the
property which would make the area in question no longer an
airport. However, the statute does not instruct a landowner how
and under what circumstances an airstrip may be closed so that it
is no longer "used or intended for use for the landing and take-
off of aircraft." Arguably, the person who determines whether
the area is "used or intended for use for the landing and take-
off of aircraft" is the landowner. Mr. Magnuson has decided that
during the winter months, the area in question is not to serve as
an airstrip. During this time it is no longer to be "used or
intended for use for the landing and take-off of aircraft."
Arguably, he can do this. The statute, as it currently stands,
is not sufficiently clear so that we can say that Magnuson's
conduct was criminal under AS 02.20.050.
The state contends that a landowner can close a private
airport by placing an "X" on the runway. This argument is
seemingly inconsistent with the state's concession that a
landowner may not close the runway by putting barrels or
machinery or other obstructions on the runway. However, the
state agrees that a landowner could build a house, plant trees,
or run a business on the runway. A landowner who took these
actions would certainly be placing obstructions on the airstrip.
The statute does not clearly specify when or how the landowner
could obstruct the airstrip legally as a means of closing it.
Again, we do not believe that the statute is sufficiently clear
so as to criminalize Magnuson's conduct. Here Magnuson's intent
was clearly not to prevent certain traffic from using an
otherwise operational airstrip or to restrict the use of an
operational airstrip for limited periods of time. Instead, it is
undisputed that Magnuson's intent was to close the airstrip
entirely for a period of approximately six months. During this
time the land was clearly not to be "used or intended for use for
the landing and take-off of aircraft." We accordingly hold that
the statute, as it currently stands, does not reach Magnuson's
conduct. We conclude that Judge Crutchfield erred in failing to
grant Magnuson's motion to dismiss.
In so holding, we recognize the force of the state's
argument that it may be important to maintain small private
airfields throughout the state which are free of obstructions in
case of emergency. We recognize that the state may have a strong
interest in requiring a landowner to notify the public of actions
which he takes with land that has been used as an airstrip.
However, the state, by statute or regulation, must give a
landowner clear notice as to what conduct is legal and illegal.
By our decision we do not intend to preclude the state from
charging a person who obstructs an airport or runway under AS
02.20.050 if that person engages in "hard-core conduct" under the
statute. See Stock v. State, 526 P.2d 3 (Alaska 1974). The
state is free to amend the statute or enact regulations which
would give a person in Magnuson's position notice as to what
conduct he may or may not engage in under AS 02.20.050. We also
do not intend to preclude the state from prosecuting hazardous
conduct under other statutes.1 The conviction is
REVERSED.
_______________________________
1. For instance, under some circumstances the state
may be able to charge a defendant with reckless endangerment
under AS 11.41.250. Under that statute, "a person commits the
crime of reckless endangerment if the person recklessly engages
in conduct which creates a substantial risk of serious physical
injury to another person."
