Brewer v. State

• Decision Date: 28 November 2014
• Docket Number: No. S–14916.,S–14916.
• Citation: 341 P.3d 1107
• Parties: William BREWER II, Donna Brewer, William Brewer III, Stephanie Brewer, Charles Gray, Margaret Gray and Allen Gray, Appellants, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

341 P.3d 1107

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.

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 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 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.

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 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 suppression resources.”² 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 oncoming fire of fuel.³ According to the State, the Railbelt Complex fires passed through the subdivisions without damaging the landowners' structures; the landowners do not appear to dispute it.

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 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, 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.

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 party is entitled to judgment as a matter of law.⁵ We review the facts in the light most favorable to the non-moving parties and draw all reasonable inferences in their favor.⁶ 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.

“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 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 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...