William BREWER II, Donna Brewer, William Brewer III, Stephanie Brewer, Charles Gray, Margaret Gray and Allen Gray, Appellants, v. STATE of Alaska, Appellee.
No. S-14916.
Supreme Court of Alaska.
Nov. 28, 2014.
341 P.3d 1107
J. Anne Nelson, Assistant Attorney General, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Appellee.
Before: FABE, Chief Justice, STOWERS, MAASSEN, and BOLGER, Justices.
OPINION
MAASSEN, Justice.
I. INTRODUCTION
Major forest fires swept through areas south of Fairbanks in the summer of 2009 and approached properties owned by the appellants (the landowners). In an effort to save the landowners’ structures, firefighters working under the direction of the State Department of Forestry intentionally set fire to the landowners’ vegetation. The burnouts deprived the advancing wildfires of fuel and saved the structures. But the landowners sued the State, bringing a takings claim under the eminent domain provision of the
II. FACTS AND PROCEEDINGS
A. Facts
During the summer of 2009, wildfires that came to be known as the Railbelt Complex developed in Interior Alaska, ultimately engulfing over 600,000 acres.1 The appellant landowners owned property in subdivisions known as Teklanika Channel Lake, Dune Lake, and Totek Lake, about 45 miles south-west of Fairbanks. Their properties are on
B. Proceedings
Landowners William Brewer II and Donna Brewer, William Brewer III and Stephanie Brewer, Charles and Margaret Gray, and Cindy Walker4 all filed suit against the State in 2010. Each suit alleged a takings claim under
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, the superior court concluded that the State was entitled to immunity under both
The landowners filed this appeal.
III. STANDARDS OF REVIEW
We review a grant of summary judgment de novo, affirming if there is no genuine dispute of material fact and the undisputed facts demonstrate that the moving
IV. DISCUSSION
A. It Was Error To Dismiss The Landowners’ Takings Claims.
“We liberally interpret Alaska‘s Takings Clause in favor of property owners, whom it protects more broadly than the federal Takings Clause.”9 This protection applies to personal as well as real property and allows compensation for temporary as well as permanent takings.10 Takings claims are not based in tort and do not require that the government act with any particular mental state.11 The viability of 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 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
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 of a sovereign‘s police powers.”13 One important aspect of the police power is the suppression and prevention of fires; indeed, “[p]erhaps the most striking application of the police power is the destruction of buildings to prevent the spread of a conflagration.”14
In Alaska, the State‘s entry upon private land “for the purpose of preventing, suppressing, or controlling a wildland fire” is explicitly authorized by statute.15 The legislature further emphasized the public nature of such activities in its enactment of a specific statutory immunity for actions taken while fighting wildfires (discussed below).16 Implicit in these provisions is the accepted wisdom that fighting wildfires, even on private property, is of benefit to the public as a whole regardless of whether only individual landowners are immediately benefitted. In this case, putting aside the issues of whether the burnouts were set at the right time and
in the right place, there is no dispute that they were part of the State‘s efforts to contain and direct the Railbelt Complex fires. Because the burnouts were set in the exercise of the State‘s police powers, the damage they caused was for a public use for purposes of the Takings Clause.
We therefore need not reach the landowners’ arguments that the public use can be found in alleged State purposes to maximize forage for wildlife or to protect forests that were commercially valuable. And we reject the State‘s argument that there is no public benefit or use in conducting burnouts on private land to prevent the destruction of private structures.
On this point, the United States Supreme Court‘s decision in Hawaii Housing Authority v. Midkiff17 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.”18 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 improvement in order [for it] to constitute a public use“;19 and “what in its immediate aspect [is] only a private transaction may ... be raised by its class or character to a public affair.”20 The Court also noted the great deference courts
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 presented in Town of Gila Bend v. Walled Lake Door Co.22 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 consequence.”23 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 private property from damage does not result in a compensable taking.25 During riots in the Panama Canal Zone, the Army occupied the petitioners’ buildings, which were heavily damaged during the fighting that followed.26 Although the petitioners argued that the Army used their buildings “as part of a general defense of the Zone as a whole,” the Court concluded that “[t]he stipulated record ... demonstrates that the troops were acting primarily in defense of petitioners’ buildings.”27
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 the clause did not apply to the petitioners’ losses.28 It acknowledged that “any protection of private property also serves a broader public purpose.”29 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.30
That the petitioners’ damage was not directly caused by the government made no difference to the Court‘s analysis: “[P]etitioners
We do not believe that YMCA‘s “intended beneficiary” test adequately reflects the broad protection of Alaska‘s Takings Clause.32 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 public.‘”33 We note further that the danger the Supreme Court identified in recognizing a right to compensation under the
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.
2. The burnouts conducted by the State do not constitute a compensable taking if they were justified by the doctrine of necessity.
Regardless of whether the State damaged the landowners’ property for a public use, the landowners have no constitutional right to just compensation if the State‘s actions were justified by the doctrine of necessity. But given the broad protections of Alaska‘s Takings Clause, we decline to hold that every valid exercise of the police power is justified by the doctrine of necessity and results in a noncompensable taking.
In granting summary judgment to the State on the takings claims, the superior court found in effect that necessity was implicit in the State‘s exercise of its police power. The court reasoned that it was pursuant to the State‘s police power that the legislature enacted
We have held that “[t]he distinction between eminent domain and the state‘s police power is well established legal doctrine.”37 Where one ends and the other begins, 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 therefor,”38 whereas the police power may allow the State “consistently with constitutional requirements [to] acquire private property interests in a manner that does not constitute a taking,”39 i.e., without having to provide reasonable compensation.40 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.”41
But the distinction between eminent domain (compensable) and a valid exercise of the police power (not compensable) is not a sharp one.42 The United States Supreme Court has repeatedly recognized that there are limits beyond which a state‘s otherwise valid exercise of its police power may require compensation.43 Defining those 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.44
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] necessity that involves the public interest.”45 Public necessity “completely excuses the defen-
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.50 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.”51 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.”52 Later cases affirmed the common law foundations of the necessity defense under similar circumstances.53
The Federal Circuit recently discussed the necessity doctrine in TrinCo Investment Co. v. United States.54 Wildfires were burning parts of the Shasta-Trinity National Forest in California. The Forest Service intentionally lit fires on and adjacent to TrinCo‘s properties in order to deprive the fires of
The federal claims court granted the United States’ motion to dismiss, reasoning that “the doctrine of necessity absolves the Government from liability for any taking or destruction of property in efforts to fight fires.”56 On appeal, however, the Federal Circuit held that the lower court had “misapprehended the reach of the doctrine of necessity.”57 It held that “extend[ing] the doctrine of necessity to automatically 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.”59 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.”60 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.61 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:62 “[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’ 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 invading enemy army, as in Caltex.”65 It held that “[i]t is certainly plausible that the Iron 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.”66 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
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
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.
B. The Superior Court Did Not Err In Dismissing The Landowners’ Tort Claims.
The landowners argue that the superior court also erred in dismissing their tort claims against the State, but on this issue we affirm the judgment of the superior court, finding the claims barred by statutory immunity.
1. Alaska Statute 41.15.045, not AS 09.50.250, controls whether the State‘s firefighting activities are immune from tort liability.
The superior court conducted a two-step analysis of the State‘s governmental immunity defense, addressing first the discretionary immunity provided by
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,
Legislative history shows that
In sum, as we held in Angnabooguk,
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.”85 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 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 un-
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
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.
WINFREE, Justice, not participating.
Richard HUGHES, The Alaska Miners association, and the Council of Alaska Producers, Appellants, v. Mead TREADWELL, Lieutenant Governor of the State of Alaska, The State of Alaska, Division of Elections, Christina Salmon, Mark Niver, and John H. Holman, Appellees.
No. S-15468.
Supreme Court of Alaska.
Jan. 30, 2015.
Notes
- Control all wildland fires occurring within this management option at the smallest acreage reasonably possible on initial attack without compromising fire fighter safety.
- Protect sites or areas designated as Full management from the spread of wildland fires burning in a lower priority management option.
- Minimize damage from wildland fires to the resources identified for protection within the Full management designation commensurate with values at risk.
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.