WILLIAM BREWER II, DONNA BREWER, WILLIAM BREWER III, STEPHANIE BREWER, CHARLES GRAY, MARGARET GRAY and ALLEN GRAY, Appellants,
STATE OF ALASKA, Appellee
Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Douglas Blankenship, Judge. Superior Court No. 4FA-10-02618 CI.
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.
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
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. 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."  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. 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.
Landowners William Brewer II and Donna Brewer, William Brewer III and Stephanie Brewer, Charles and Margaret Gray, and Cindy Walker 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. We review the facts in the light most favorable to the non-moving parties and draw all reasonable inferences in their favor. We review the Alaska Constitution and Alaska statutes de novo, " adopting rules of law that best reflect precedent, reason, and policy." 
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."  The landowners contend that the State damaged their private property for public ...