Brewer v. State
2014 Alas. LEXIS 224
| Alaska | 2014Background
- In summer 2009 the Railbelt Complex wildfires approached private subdivisions southwest of Fairbanks; State Department of Forestry firefighters entered plaintiffs’ parcels and set "burnouts" (backfires) around structures to deprive the advancing fires of fuel.
- Plaintiffs (several landowners) sued the State asserting (1) a takings / inverse-condemnation claim under article I, §18 of the Alaska Constitution and (2) tort claims for negligence and intentional misconduct. Cases were consolidated and the State moved for summary judgment.
- The superior court granted summary judgment to the State, holding the burnouts were a noncompensable exercise of police power (no taking) and that tort claims were barred by statutory immunity. Plaintiffs appealed.
- The State relied on its firefighting authority under AS 41.15.040 and on statutory immunities (AS 09.50.250 and the later, specific firefighting immunity AS 41.15.045). Plaintiffs argued the burnouts (a) damaged private property for public use and (b) were not justified by necessity and/or constituted intentional misconduct under the immunity exception.
- The Alaska Supreme Court affirmed dismissal of tort claims under AS 41.15.045 but reversed dismissal of the takings claim and remanded to determine whether the doctrine of necessity justified the burnouts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the burnouts were a taking under Alaska Const. art. I, §18 | Burnouts damaged private land for public use (fuel reduction, protection of State forests and public wildlife/forage) entitling owners to just compensation | Burnouts were an exercise of the State's police power to protect life/property and thus not a compensable taking | Damage occurred in the exercise of police power (public use) — but whether compensation is required depends on necessity; remanded to determine if doctrine of necessity applies |
| Whether the doctrine of necessity bars compensation for firefighting damage | Plaintiffs: necessity does not automatically apply; burnouts may have been avoidable or could have been conducted elsewhere | State: firefighting is a police-power activity and necessity is implied, so no compensation | Court: necessity is a distinct, fact-specific defense requiring imminent danger and an actual emergency; not automatic — remand for factual inquiry |
| Whether the State is immune from tort liability for burnout-related property damage | Plaintiffs: State acted intentionally and may have violated its Full Management Option policy (intentional misconduct exception) | State: AS 41.15.045 provides broad immunity for firefighting activities; AS 09.50.250 also shields discretionary decisions | Court: AS 41.15.045 (later, specific statute) controls and bars tort claims; plaintiffs did not meet the intentional-misconduct exception; tort dismissal affirmed |
| Which immunity statute governs firefighting tort claims | Plaintiffs: general governmental-immunity principles under AS 09.50.250 apply (planning/operational distinction) | State: the later, specific firefighting immunity (AS 41.15.045) supersedes AS 09.50.250 and immunizes firefighting activities broadly | Court: AS 41.15.045 controls (specific and later); it immunizes firefighting acts except for intentional misconduct with complete disregard; affirmed that AS 09.50.250 is no longer dispositive here |
Key Cases Cited
- Waiste v. State, 10 P.3d 1141 (Alaska 2000) (Alaska’s Takings Clause affords broader protection than federal clause)
- Mt. Juneau Enters., Inc. v. City & Borough of Juneau, 923 P.2d 768 (Alaska 1996) (inverse condemnation principles)
- Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (U.S. 1984) (public use concept coterminous with police power; private beneficiaries do not preclude public use)
- Nat’l Bd. of YMCA v. United States, 395 U.S. 85 (U.S. 1969) ("intended beneficiary" rule: where government acts primarily for private beneficiaries, no Fifth Amendment compensation)
- Bowditch v. City of Boston, 101 U.S. 16 (U.S. 1879) (common-law necessity: destruction to stop spread of fire excused without compensation)
- United States v. Caltex (Phil.), Inc., 344 U.S. 149 (U.S. 1952) (wartime destruction justified by imminent peril; necessity defense)
- Mitchell v. Harmony, 54 U.S. 115 (U.S. 1851) (necessity requires immediate and urgent danger)
- TrinCo Inv. Co. v. United States, 722 F.3d 1375 (Fed. Cir. 2013) (doctrine of necessity requires imminent danger and actual emergency; government not automatically absolved for fire-control takings)
- Angnabooguk v. State, Dep’t of Natural Res., Div. of Forestry, 26 P.3d 447 (Alaska 2001) (planning vs. operational distinction in governmental-immunity analysis for firefighting activities)