search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Mestar v. Heckman (9/11/98), 964 P 2d 445
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907)
264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
DAVID MESIAR, in his official )
capacity, and STATE OF ALASKA,) Supreme Court No. S-7892
DEPARTMENT OF FISH AND GAME, )
) Superior Court No.
Petitioners, ) 3BE-94-547 CI
ART HECKMAN, SR., FRED LAMONT,) O P I N I O N
SR., and MARTIN KELLEY, on )
behalf of themselves and all ) [No. 5031 - September 11, 1998]
others similarly situated, )
Petition for Review from the Superior Court of
the State of Alaska, Fourth Judicial District, Bethel,
Mark I. Wood, Judge.
Appearances: Gary M. Guarino and Venable
Vermont, Jr., Assistant Attorneys General, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Petitioners. Russell L.
Winner and Lisa H. Donnelley, Winner & Associates, P.C., Anchorage,
and Myron Angstman, Angstman Law Office, Bethel, for Respondents.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
Art Heckman, Fred Lamont, and Martin Kelley (collectively
Heckman) engage in commercial or subsistence fishing on the Yukon
River drainage; on behalf of themselves and similarly situated
resource users, they sued David Mesiar and the Alaska Department of
Fish and Game (collectively ADF&G) for negligent operation of a
sonar fish counter that ADF&G relied on to make fisheries closure
decisions for the Yukon River drainage during the 1994 fishing
season. The main issues presented are whether ADF&G owes Heckman
an actionable duty to use reasonable care in fisheries data
collection and management, and, alternatively, whether ADF&G is
immune from tort liability for negligent data collection. We
conclude that ADF&G owes no actionable duty to Heckman and do not
reach the immunity question.
II. FACTS AND PROCEEDINGS
The Commissioner of ADF&G has the responsibility to
"manage, protect, maintain, improve, and extend the fish, game, and
aquatic plant resources of the state in the interest of the economy
and general well-being of the state." AS 16.05.020(2). Title 16,
Chapter 5 of the Alaska Statutes gives ADF&G broad powers to carry
out its statutory responsibilities, including the power to
summarily order emergency openings and closures of fishing periods;
such orders have the force and effect of law. See AS 16.05.020(3);
In 1994 the Board of Fisheries promulgated 5 AAC 01.249
as a guideline for managing the fall chum-salmon run from July 16
through December 31 in the Yukon River drainage. The regulation
included provisions governing mandatory closures and setting time
limits for different fisheries -- commercial, sport, personal use,
and subsistence -- depending on the projected run size. 5 AAC
In order to explain and supplement 5 AAC 01.249, ADF&G
issued Regional Information Report No. 3A94-23, the "Yukon Area
Commercial and Subsistence Salmon Fisheries 1994 Management Plan."
In this plan, ADF&G stated that the sonar project near Pilot
Station would be the primary method by which it would assess the
fall chum salmon run. ADF&G set guidelines for operating the sonar
and, in an internal memorandum entitled "Project Operational Plan
for the Lower Yukon River Sonar," described these guidelines, as
well as the sonar equipment itself and how it would be used in
counting fish on the Yukon.
As a result of low salmon counts, ADF&G closed fisheries
on the Yukon during parts of the 1994 fall chum season under 5 AAC
01.249. In response, Heckman filed a class action against ADF&G
employee David Mesiar and ADF&G, alleging that Mesiar, who operated
the sonar counter near Pilot Station, negligently miscounted the
run, thereby precipitating unnecessary closures and restrictions on
Yukon River drainage chum fisheries.
ADF&G moved to dismiss Heckman's complaint for failure to
state a claim, arguing primarily that it owed no actionable duty to
Heckman and that, even if it did owe a duty, it had immunity from
tort suits arising out of fisheries management decisions under AS
09.05.250(1)'s discretionary function exception. Superior Court
Judge pro tem Mark Wood denied ADF&G's motion, holding that ADF&G
owed Heckman a duty to operate sonar counting equipment in a non-
negligent manner and that, though fisheries closure decisions
themselves are immune discretionary functions, ministerial data
collection functions supporting those decisions are not.
ADF&G petitioned this court to review Judge Wood's
ruling. We granted the petition and now consider whether Heckman's
cause of action for negligent fish counting can be sustained
against ADF&G's assertions that it had no duty and is immune from
liability. We begin by considering the issue of duty.
III. ADF&G OWES HECKMAN NO ACTIONABLE DUTY. [Fn. 1]
A. The Relationship between ADF&G and Heckman Is the Same as
the Relationship between ADF&G and Any Other Alaska Fisheries
The initial step in deciding whether an action for
negligence can be maintained is to consider whether a duty exists.
See Kooly v. State, 958 P.2d 1106, 1108 & n.3 (Alaska 1998) (citing
Stephens v. State, Dep't of Revenue, 746 P.2d 908, 910 (Alaska
1987)). Whether an actionable duty exists is a question of law and
public policy. See Estate of Day v. Willis, 897 P.2d 78, 80-81
(Alaska 1995). "'Duty' is not sacrosanct in itself, but is only an
expression of the sum total of those considerations of policy which
lead the law to say that the particular plaintiff is entitled to
protection." City of Kotzebue v. McLean, 702 P.2d 1309, 1313
(Alaska 1985) (quoting William L. Prosser, The Law of Torts sec.
at 325 (4th ed. 1971)). In McLean we adopted an ad hoc approach to
duty determinations, explaining that we "first define the class of
cases to which our rulings will apply, then weigh the factors which
support and oppose the imposition of liability in that class of
cases." Id. at 1314.
In the first phase of duty analysis that McLean describes
-- defining the class of cases to which our ruling applies -- we
must bear in mind that duty is at heart a question of policy
centering on the basic relationship between the parties rather than
on the nature of their conduct on a given occasion. See W. Page
Keeton et al., Prosser and Keeton on the Law of Torts sec. 53, at
(5th ed. 1984). Particular conduct becomes important only when a
duty is imposed; the conduct then helps to determine the applicable
standard of care: "It is better to reserve 'duty' for the problem
of the relation between individuals which imposes upon one a legal
obligation for the benefit of the other, and to deal with
particular conduct in terms of a legal standard of what is required
to meet [that] obligation." Id. (emphasis added). As we noted in
Kooly, we must take "a generalized approach which asks whether a
duty of care should be imposed in the general class of cases"
exemplified by the case before the court. Kooly, 958 P.2d at 1109.
This generalized approach is necessary because "'fact-intensive
inquiries pertain to the issues of breach, causation, and damages,
not the threshold legal question of whether a duty exists.'" Id.
(quoting Bolieu v. Sisters of Providence in Washington, 953 P.2d
1233, 1241 (Alaska 1998)).
The threshold issues, then, are what sort of relationship
exists between the parties, and what class of cases does that
relationship define. Heckman seems to argue that the parties'
relationship is narrow and specific -- that Mesiar was essentially
counting salmon for the benefit of persons engaging in the Yukon
River fall chum-salmon run. But ADF&G more broadly characterizes
the relationship at issue here as the basic relationship between a
resource manager and a resource user: "Fisheries management and
population sampling are inexact processes and for every season and
every fishery closure (or opening) there will be disappointed
users." ADF&G contends that imposing "an actionable common law
duty on a state to collect data for fisheries or public resource
management in a non-negligent manner"would be virtually
unprecedented. And it claims that recognizing such a broad duty
"will encourage annual class-action suits to challenge unpopular
In our view, ADF&G accurately characterizes the
relationship at issue in this case and the class of cases it
defines. Common-law principles and the common-use clause in
article VIII, section 3, of the Alaska Constitution "impose upon
the state a trust duty to manage the fish, wildlife and water
resources of the state for the benefit of all the people."
Owsichek v. State, Guide Licensing & Control Bd., 763 P.2d 488, 495
(Alaska 1988) (emphasis added). Alaska Statutes 16.05.020(2)
reflects this constitutional mandate: "The [ADF&G] commissioner
shall . . . manage . . . the fish . . . resources of the state in
the interest of the economy and general well-being of the state[.]"
AS 16.05.020(2) (emphasis added). Alaska Statutes 16.05.092 also
mirrors the constitutional mandate, requiring ADF&G to "develop and
continually maintain a comprehensive, coordinated state plan for
the orderly present and long-range rehabilitation, enhancement, and
development of all aspects of the state's fisheries for the
perpetual use, benefit, and enjoyment of all citizens. AS
16.05.092(1) (emphasis added).
ADF&G undoubtedly designed its sonar chum-salmon counting
project to benefit Heckman and other Yukon River resource users.
But Heckman and other Yukon River users were not the exclusive
beneficiaries of the program. As part of ADF&G's overall resource-
management effort, the sonar project served all resource users and
potential users in Alaska. Heckman did stand to gain or lose from
ADF&G's efforts more immediately and directly than other Alaskans.
But this gave him no special power to demand a higher level of
performance from the agency, and it gave him no vested right to
recover damages in the event of ADF&G's failure.
In short, Heckman's relationship to ADF&G was that of a
resource user to a resource manager. In performing his job as
operator of the sonar fish counters, Mesiar collected data for
ADF&G, not for Heckman. [Fn. 2] And in making decisions based on
Mesiar's data, ADF&G acted not for the particular and immediate
benefit of Heckman and other users of the fall chum-salmon run then
in progress, but for the broader benefit of short-term and long-
term resource users statewide. If ADF&G owed Heckman an actionable
duty of due care in counting fish during the fall chum run, logic
would dictate that the agency owed the same duty to all resource
users who might claim foreseeable injury as a result of ADF&G's
failure to exercise due care in any ministerial aspect of any
resource- management program. [Fn. 3]
The relationship between resource manager and resource
user, then, is "the class of cases to which our ruling will
apply." McLean, 702 P.2d at 1314. We must now turn to the second
phase of our duty analysis, which requires us to "weigh the factors
which support and oppose the imposition of liability in [this]
B. The State Owes No Duty to Heckman under the D.S.W. Duty
1. The D.S.W. factors
In D.S.W. v. Fairbanks North Star Borough School
District, 628 P.2d 554, 555 (Alaska 1981), we listed the following
public policy considerations as relevant in determining if an
actionable duty of care exists:
The foreseeability of harm to the plaintiff,
the degree of certainty that the plaintiff suffered injury, the
closeness of the connection between the defendant's conduct and the
injury suffered, the moral blame attached to the defendant's
conduct, the policy of preventing future harm, the extent of the
burden to the defendant and consequences to the community of
imposing a duty to exercise care with resulting liability for
breach, and the availability, cost and prevalence of insurance for
the risk involved.
Id. (quoting Peter W. v. San Francisco Unified Sch. Dist., 131 Cal.
Rptr. 854, 859-60 (Cal. App. 1976)). Applying these factors to the
present case, we conclude that no actionable duty should be found
a. Foreseeability of harm, certainty of injury,
and connection between conduct and injury
In Mattingly v. Sheldon Jackson College, 743 P.2d 356,
361 (Alaska 1987), we held that, for purely economic harm, the
identifiable class of plaintiffs must be particularly foreseeable
in number, type, and economic expectations. ADF&G argues that the
harm to Heckman is not foreseeable or certain because the class of
plaintiffs is not particularized. Heckman counters that ADF&G knew
that its closure decisions would be based on the sonar numbers and
that any inaccuracy could therefore result in harm to Heckman. In
Heckman's view, the closures thus caused certain harm and were a
direct result of the negligent sonar operation.
Both parties are correct. Heckman is correct in
asserting that ADF&G's closure decisions predictably and
specifically harmed users of the Yukon River drainage fall chum
run. But ADF&G is also correct in observing that identifying
plaintiffs and specific damages, as contemplated by Mattingly, 743
P.2d at 361, is problematic. ADF&G's resource-management decisions
foreseeably affect many resource users other than those fishing the
fall run upstream from the counters; the benefits to one class of
users often will harm others, creating a potential conflict between
classes of resource users alleging differing harms.
In any fisheries-regulation scheme, the interests of some
classes of resource users at times become adverse to those of
others; a management decision that benefits some inevitably will
harm others. For instance, premature closures on the lower river
allow more fish to reach upper-river users and may result in a
larger escapement, providing future benefits to the ocean-fishing
industry. The argument that Heckman's damages are foreseeable and
certain thus proves too much: almost all fisheries-management
decisions have predictable adverse effects on one class of resource
users or another; because virtually any management action may be
characterized as negligent, recognizing an actionable duty of due
care to Heckman would foreseeably expose ADF&G to litigation for
almost any future management decision. Hence, the foreseeability
of harm to Heckman is not a dispositive factor. Cf. Stephens, 746
P.2d at 911-12 (imposing no duty of care in filing a lawsuit even
though the State could foresee that a negligently brought suit
would cause harm).
b. Moral blame attached to ADF&G's conduct
Virtually all negligence may be viewed as morally
blameworthy. Yet in determining the existence of a duty, we have
sometimes attached little moral blame to negligent conduct; at
other times, we have emphasized this factor. ADF&G accurately
observes that the differing treatment our case law accords to the
blameworthiness of various negligent acts reflects distinctions in
the types of risk they involve. Our cases have ascribed particular
significance to the moral blameworthiness of negligence that
creates a risk of death or serious personal injury; in contrast, we
have ascribed little blameworthiness to ordinary negligence that
merely causes economic or purely emotional harm. [Fn. 4]
We certainly do not mean to trivialize the serious and
substantial harm that ADF&G's alleged negligence may have caused
Heckman and similarly situated resource users; but this harm is
nonetheless primarily economic. We conclude that, when ordinary
negligence creates a risk of economic harm only, moral
blameworthiness is not a prominent factor for purposes of
determining the existence of an actionable duty.
c. Policy of preventing future harm
Heckman argues that future negligence in implementing
sonar plans would be deterred by imposing a duty on ADF&G. We find
the argument unpersuasive.
As we have already pointed out in our discussion of
foreseeability, ADF&G's closure orders have different impacts on
potentially conflicting groups of resource users. Recognizing an
actionable duty to avoid negligent closures based on inaccurate
sonar counts could impede ADF&G's ability to manage for all users
by encouraging it to base closure decisions on the demands of a
single user group. It is far from clear that an actionable duty of
care would deter reliance on inaccurate data. To the contrary, the
prospect of an action for damages might merely encourage ADF&G to
succumb to the demands of the nearest and loudest group of resource
users, regardless of the accuracy of ADF&G's data.
d. The extent of the burden to the defendant and
consequences to the community of imposing a duty
We find it likely that burdensome consequences would
ensue if we declared actionable a public duty like the one ADF&G
owes to all fish and wildlife resource users in Alaska. Allowing
a cause of action against a state agency for negligent management
decisions would open the door to endless damage claims by unlimited
groups of resource users. Almost any management action might
support a claim for damages. And in contemplating any proposed
action, ADF&G might face competing threats of suit by processors
and fishing vessel owners, by upstream and downstream residents, or
by groups of resource users representing subsistence, commercial,
and sport fishing interests.
It makes no difference that Heckman does not allege
negligence arising from a management decision involving policy and
discretion, but instead alleges a series of objectively verifiable
flaws in implementing and monitoring ADF&G's sonar fish-counting
project. ADF&G routinely bases its management decisions on data
and information gathered from a wide array of sources. Holding the
agency accountable in damages for mistakes in the information
underlying its decisions would likely discourage it from acting on
any but the clearest information. Yet hesitation prompted by fear
of premature action might easily lead to cries of harm, and
accompanying suits, from resource users whose interests lay in
prompt and vigorous agency initiatives. Caught in the middle by
competing threats of litigation in the event of either action or
inaction, the agency ultimately might be driven by fear of
litigation to heed the loudest threats, rather than to rely on
sound principles of resource management.
In sum, once we recognized an actionable duty of care in
gathering data, an alleged breach of the duty might provide an
inroad for challenging broader, policy-based decisions. And the
very awareness of this possibility might prompt ADF&G to alter its
approach to making management decisions. The foreseeable negative
consequences to the community would be that the state's resources
would not be conserved for the benefit of all Alaskans, as article
VIII, section 3 of the Alaska Constitution requires. Public policy
dictates that ADF&G be free from such coercion in collecting data
and making management decisions.
e. Availability of insurance
The record contains no meaningful information concerning
the availability or potential cost of insurance to protect the
State from damages claims arising from negligent resource-
management decisions. But given the unprecedented nature of a
cause of action for damages stemming from negligent resource
management, and given further that almost any management decision
will harm some resource users and generate a risk of suit, we think
it unlikely that the State could find or afford insurance. As a
practical matter, it seems likely that the State would absorb all
costs of litigation, in effect becoming a guarantor of Alaska's
ability to ensure fish and wildlife resources to its citizens.
This result hardly seems desirable.
2. The D.S.W. factors do not warrant a finding of
Heckman cites no cases, and we are aware of none, holding
that mere negligence by an agency charged with a general public
duty of resource management supports a claim for damages by an
affected resource user. But there are significant similarities
between the present case and D.S.W., which involved the State's
alleged negligence in fulfilling an analogous, broad-based public
responsibility: providing public education to children. In D.S.W.,
we declined to find an actionable right to a non-negligent
Few of our institutions, if any, have aroused
the controversies, or incurred the public dissatisfaction, which
have attended the operation of the public schools. . . . To hold
them to an actionable "duty of care,"in the discharge of their
academic functions, would expose them to the tort claims -- real or
imagined -- of disaffected students and parents in countless
628 P.2d at 555-56 (quoting Peter W. v. San Francisco Unified Sch.
Dist., 131 Cal. Rptr. 854, 861 (Cal. App. 1976)). As ADF&G
correctly asserts, fisheries management, much like academic
management, is an area fraught with controversy of the kind that
invites litigation. [Fn. 5] We would greatly compound the
volatility surrounding fisheries issues by allowing a cause of
action for negligent resource-management decisions. Holding ADF&G
"to an actionable 'duty of care,' . . . would expose [it] to the
tort claims -- real or imagined -- of disaffected [resource users]
in countless numbers." Id.
We conclude that the relationship between Heckman and
ADF&G does not support an actionable duty. [Fn. 6] Accordingly, we
REVERSE the superior court's denial of ADF&G's motion to dismiss.
Because Judge Wood considered materials outside the pleadings,
we will review his decision as a denial of a summary judgment
motion. See Homeward Bound, Inc. v. Anchorage Sch. Dist., 791 P.2d
610, 612 (Alaska 1990). We therefore review the record de novo
and, taking the facts in the light most favorable to the non-moving
party, determine whether any genuine issue of material fact exists
and whether the moving party is entitled to judgment as a matter of
law. See Hawks v. State, Dep't of Pub. Safety, 908 P.2d 1013, 1015
See, e.g., Myers v. United States, 17 F.3d 890, 900 (6th Cir.
1994) (holding that government mine inspectors' duty ran only to
government, not to miners); Clemente v. United States, 567 F.2d
1140, 1144-45 (1st Cir. 1977) (holding that FAA inspectors' duty
ran only to government, not to public).
In so observing, we do not suggest a revival of the "public
duty doctrine,"which we laid to rest in Adams v. State, 555 P.2d
235, 241-42 (Alaska 1976), and declined to resurrect in City of
Kotzebue v. McLean, 702 P.2d 1309, 1311-12 (Alaska 1985). Our
observation pertains not to ADF&G's abstract "public duty to all."
Adams, 555 P.2d at 241. Rather, the point we make is that the
specific actions at issue here -- the decisions ADF&G based on
Mesiar's data -- simultaneously affected multiple and potentially
conflicting classes of resource users. Proximity in time and place
to an ADF&G resource-management action confers no automatic right
of preference to one group of affected resource users over another.
Accordingly, for purposes of defining "the class of cases to which
our ruling will apply,"McLean, 702 P.2d at 1314, it is
inconsequential that ADF&G's actions in the present case more
immediately and directly affected the interests of Yukon River
users of the fall chum-salmon run than the interests of other
potential salmon users.
Compare, e.g., Hawks v. State, Dep't of Pub. Safety, 908 P.2d
1013, 1016-17 (Alaska 1995) (imposing no duty of care in
identifying remains), and Stephens, 746 P.2d at 911-12 (imposing no
duty of care in bringing lawsuit), with R.E. v. State, 878 P.2d
1341, 1347 (Alaska 1994) (imposing duty of care in licencing day-
care facility), Division of Corrections v. Neakok, 721 P.2d 1121,
1129 (Alaska 1986) (imposing duty of care in controlling parolee
who later killed people), and City of Kotzebue v. McLean, 702 P.2d
1309, 1314 (Alaska 1985) (imposing duty of care in responding to
identified caller who threatened to kill).
See, e.g., Pullen v. Ulmer, 923 P.2d 54 (Alaska 1996);
Stepovak-Shumagin Set Net Ass'n v. State, Bd. of Fisheries, 886
P.2d 632 (Alaska 1994); Gilbert v. State, Dep't of Fish & Game, 803
P.2d 391 (Alaska 1990); Meier v. State, Bd. of Fisheries, 739 P.2d
172 (Alaska 1987).
Our decision that ADF&G owed Heckman no actionable duty of due
care makes it unnecessary to consider the parties' immunity
arguments. See Hawks v. State, Dep't of Pub. Safety, 908 P.2d
1013, 1017 (Alaska 1995).