    Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
    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
    corrections@akcourts.us.



             THE SUPREME COURT OF THE STATE OF ALASKA

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,                                  )
                                             )        OPINION
                    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,
            Judge.

            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
            Appellee.

            Before: Fabe, Chief Justice, Stowers, Maassen, and Bolger,
            Justices. [Winfree, Justice, not participating.]

            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


      1
              See A LASKA INTERAGENCY C OORDINATION CTR . PREDICTIVE SERVS .
S ECTION , A LASKA FIRE SEASON 2009: W ILDLAND FIRE SUMMARY & STATISTICS
ANNUAL REPORT 18 (2009), available at http://fire.ak.blm.gov/content /aicc/stats/archive
/2009.pdf.

                                           -2-                                       6968
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.




       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
              safety.
              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

       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,


       4
              Walker was released from the suit before summary judgment.

                                           -4-                                        6968
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.



       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
Domain.”

                                           -5-                                      6968

              “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

       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

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




       13
            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
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.




      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
              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 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

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,”


       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

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 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.”31




       27
              Id. at 90.
       28
              Id. at 89.
       29
              Id. at 92.
       30
              Id. (citations omitted).
       31
              Id. at 89.

                                          - 11 -                                     6968

                 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 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.).
       33
              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 W M . & M ARY BILL RTS . J. 277, 295 (2000)).
       34
                 Nat’l Bd. of YMCA, 395 U.S. at 92.

                                           - 12 -                                   6968

              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 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

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.”36 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
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



       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
omitted).

                                            - 14 -                                      6968

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

         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
2001).
         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 distinction 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 h ave 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
                                                                 (continued...)

                                           - 15 -                                      6968

              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
defendant’s liability.”46 While the privilege of public necessity is an individual one, state
officials can exercise it.47 Thus, the state generally does not have to pay compensation
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.”48
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.49


       44
        (...continued)
Principle”: A Critique of the Privilege of Necessity Destruction Under the Fifth
Amendment, 82 N OTRE D AME L. REV . 481 (2006).
       45
              BLACK ’S LAW D ICTIONARY 1131 (9th ed. 2009).
       46
              Id.
       47
              1 JULIUS L. SACKMAN , N ICHOLS ON EMINENT D OMAIN §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
omitted).
       49
              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
                                                                            (continued...)

                                           - 16 -                                      6968

              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


       49
         (...continued)
( 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
                                                                            (continued...)

                                            - 17 -                                      6968

              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 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.55
              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



       53
        (...continued)
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. LA FAVE & A.
SCOTT , JR ., H ANDBOOK 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

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’




       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

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
              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

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
peril” and chooses to damage private property as the lesser of two evils.69 It is that
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

      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 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
choices or some other exercise of discretion.71 Focusing on AS 09.50.250, our analysis
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

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.74 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.75 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

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
others.”77
              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.78 The governor’s sponsor statement, and his letter
transmitting the proposed bill to the legislature, reported that two of this court’s 2001
decisions79 “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.,
 st
1 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 A LASKA , D EP ’T OF LAW , O P . A TT ’Y G EN ., 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

diverts substantial state resources to defend such lawsuits.”81 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.”82
              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.83
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
specifically.84

       81
              Id.
       82
               Sectional Analysis of Committee Substitute for H.B. 245, 23d Leg.,
 st
1 Sess., available at Alaska Leg. Microfiche Collection No. 10825. See also S TATE OF
A LASKA , D EP ’T OF LAW , O P . A TT ’Y G EN ., 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).
       84
              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

                                                                           (continued...)


                                           - 25 -                                     6968

              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


       84
         (...continued)
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

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

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

