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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  


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,  



                 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  


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


                 Justices. [Winfree, Justice, not participating.]  

                 MAASSEN, Justice.  

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



                   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.  


          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 


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


ANNUAL REPORT 18(2009), available at /aicc/stats/archive  


                                                            - 2 -                                                         6968  

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


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  


                                       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  



                    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  


                                                                                                            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.  



                        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  


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



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  



                                                                         - 5 -                                                                   6968

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

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



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


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



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


                                                                                                       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  


                                                      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  



                    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  


                   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  


(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  


                   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  



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  


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  


                                                                                        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  


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


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-----------------------


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  


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


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  



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     


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. 


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  


                    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  


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  


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  


                  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.).  



                    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  



                    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  



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  


                                                                          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  


                    whereas   the   police   power   may   allow   the   State   "consistently   with  


          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  


                                                            -  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  


triggers the requirement of just compensation."                        


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


                                                                                                 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  


                                                                                                      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  


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  


          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  


                                                         - 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]  


                                                                         Public necessity "completely excuses the  

necessity that involves the public interest."  



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


                                          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  



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  


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


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  




                     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  



                                                                 -  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  



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  


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  



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

necessity defense under similar circumstances.53  


( 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  


                                                             -  17 -                                                       6968

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

                         The Federal Circuit recently discussed the necessity doctrine in  TrinCo  


                                                                  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  



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  


                                                                                                                  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  



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



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.  


   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  


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  


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  


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  


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,  


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  


                                                                                                                                     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  



                    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  



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  



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  



                    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  



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  


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.,  


    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-----------------------


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  


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  


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  



          81        Id.  

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



 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).  



                    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


                                                              - 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  



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  


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

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