Here's another one of those police power vs. takings cases, again involving governmental liability for destroying property supposedly in order to save it. We think the Alaska Supreme Court's decision in Brewer v. Alaska, No. 14-916 (Nov. 28, 2014) got the analysis right, and properly shifted the focus in these cases from the government's police power reasons for taking the actions which it did, to whether those actions were within the scope of the necessity doctrine.
Like others, Brewer involved landowners suing the government for setting fires on their land to stop or prevent wildfires (such as this case from the Federal Circuit). In Brewer, the land was designated for "aggressive initial attack" in the event of a fire. In 2009, the "Railbelt Complex" wildfire approached the properties, at which point, the state set fire to vegetation around the owners' homes to deprive the fire of fuel. When the wildfire passed through the area, the homes were not damaged.
The property owners sued, alleging both tort and takings theories, alleging that the "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." Slip op. at 4. The trial court entered summary judgment for the state, and regarding the claim on which we are focused -- the takings claim -- held that the state's burning of the owner's vegetation could not be a taking because it was a valid exercise of the police power.
The Supreme Court reversed, and sent the case back for trial, concluding that although the state acted within the lawful exercise of its police powers because the state's entry onto private land to set the backfires was authorized by state statutes, and the benefit of preventing or limiting wildfires "is of benefit to the public as a whole regardless of whether only individual landowners are immediately benefitted." Slip op. at 8. The court, relying on the U.S. Supreme Court's rationale in Midkiff ("[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") rejected the state's alternative argument that the backfires were for private benefit only because they were designed to protect the plaintiffs' homes. Id.
The court expressly rejected the "intended beneficiary" test under the Fifth Amendment, set out in National Bd. of YMCA v. United States, 395 U. S. 85, 93 (1969), under which the use by the government of private property is not public if a "private party is the particular intended beneficiary of the governmental activity." The Alaska court held that the Alaska Constitution's takings clause provides broader protection to landowners, and "[w]e do not believe that YMCA's 'intended beneficiary' test adequately reflects the broad protections of Alaska's Takings Clause." Slip op. at 12.
The court also split from other courts that hold that a valid exercise of the police power is an absolute defense to a taking. See, for example, this case, this case and this case. Contrary to those cases, the Alaska court undertook what we think is a more defensible approach to the issue, concluding "we decline to hold that every valid exercise of the police power is justififed by the doctrine of necessity and results in a noncompensable taking." Slip op. at 13. In other words, the government's mere invocation of the police power is not a blanket defense to a takings claim, at least under Alaska law.
But the converse also holds true, and agreeing with the Federal Circuit's decision in TrinCo Investment Co. v. United States, 722 F.3d 1375 (Fed. Cir. 2013), the court held:
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 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.
Slip op. at 20-21 (footnote omitted). Because "[t]he facts of this case may support applying the doctrine of necessity," slip op. at 21, but the trial court had not allowed evidence on that issue, i.e., whether the government had chosen the "lesser of two evils," the supreme court sent the case back down for more.
Finally, the court affirmed the dismissal of the tort claims, since the state has statutory immunity. See slip op. at 22-28.
More on the case here, from a local newspaper.
Overall, we think this is a well-thought-out and written opinion, and one that's worth your time to read in toto. Yes, there are 88 footnotes in a 29 page opinion, but that's only because all of the citations have been removed from the text, making the opinion visually appealing and easy to read. Bryan Garner would be proud.
Brewer v. Alaska, No. 14-916 (Alaska Nov. 28, 2014)
