Fires and Takings in Alaska

The Alaska Supreme Court issued a troubling decision on November 28, 2014, in Brewer v State, reversing a trial court ruling absolving the State of liability under the Alaska Takings Clause for property damage caused by State firefighters in a successful effort to protect the plaintiffs’ properties from being consumed by wildfire.  In the summer of 2009, a major fire engulfed hundreds of thousands of acres of forestland south of Fairbanks.  In order to protect the plaintiffs’ structures from the approaching fire, firefighters lit a “backfire” on plaintiffs’ land in order to burn away combustible vegetation and deprive the oncoming fire of fuel.  The tactic worked, because the fire passed through the plaintiffs’ subdivision without destroying the plaintiffs’ buildings.

You might think the plaintiffs would be nothing but grateful for these public servants’ courageous and successful efforts to protect their properties.  But you would be wrong.  Instead, they filed a suit seeking monetary compensation under the Alaska Takings Clause.   Their basic argument is that the State should be liable for a taking because its fire suppression effort involved burning vegetation on plaintiffs’ lands when it could have equally well protected the plaintiffs’ property by burning vegetation elsewhere, including on public lands.

First, the Court overruled the superior court’s rejection of the takings claim, which it characterized as being based on the reasoning “the State’s actions did not constitute a taking because they were a valid exercise of its police powers.”  Fair enough.   It is black letter takings law that the mere fact that a regulation represents a valid police power regulation does not mean it cannot constitute a taking; in fact, a valid police power regulation is a precondition for a valid regulatory takings claim.

Second, however, the Court rejected the compelling argument that the State could not be liable in these circumstances because it was acting for the purpose of protecting the plaintiffs’ property from harm.  The Court acknowledged the U.S. Supreme Court 1969 decision in National Board of YMCA v. United States, in which the Court held that the United States could not be held liable for damage the Army inflicted on plaintiff’s property in the course of protecting it from destruction by rioters.  So, slam dunk for the State of Alaska in this case, no?  Unfortunately not.   Instead, the Alaska court said we do not think “YMCA’s ‘intended beneficiary’ test adequately reflects the broad protection of Alaska’s Takings Clause.”  The only reasoning the Court offered for ignoring the U.S. Supreme Court’s approach was that it would “force[] courts to be caught up in an identification and evaluation of the primary beneficiary” of a government action.  Is that task really so difficult?

In any event, this is truly a remarkable ruling.  The principle embraced by the Alaska Supreme Court comes down to this:  Even if one assumes that the taxpayers have invested their hard-earned dollars in paying courageous firefighters for the sole purpose of defending a plaintiff’s property from a conflagration, as a matter of “fairness and justice” the public should suffer additional financial liability for any incidental property damage to the plaintiff caused by this public service.  Not fair and not just, at least in my view.  And not very smart from a landowner perspective; what reasonable city manager will choose to spend scarce public dollars fighting fires in the hinterlands if her reward will be a takings lawsuit?  If a city chooses not to fight a fire at all and an owner’s house burns to the ground, there is no conceivable basis for holding the city liable under the Takings Clause.  If the city chooses to expend the effort and resources to save an owner’s home, common sense dictates that it cannot be held to have taken on responsibility for paying for any incidental property damage that occurs in the process.  One can only hope that other state courts will follow the sensible lead of the U.S. Supreme Court rather than that of the Alaska Supreme Court on this important issue.

Finally, the Court left some hope for the State on remand by saying that it still might be able to defeat the claim based on the “doctrine of necessity.”  But to defeat the takings claim, the Court said, the government must demonstrate an “imminent danger and an actual emergency giving rise to actual necessity.”  On the other hand, leaning in the State’s direction, the Court emphasized:   “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 . . . . 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.  It is that choice, in that moment, for which necessity may provide a defense.”

So the superior court will have another opportunity on remand to try to arrive at a fair and just result.  In applying the necessity defense the superior court presumably can properly take into account, at least as one factor, that the necessity at issue was the necessity of protecting plaintiffs’ own properties, even in Alaska.