author: EASTAUGH, Justice.

text:
    William H. MILLER and Barbara J. Miller, Appellants, v. MATANUSKA-SUSITNA BOROUGH, Appellee.
    No. S-9735.
    Supreme Court of Alaska.
    Sept. 6, 2002.

      Kenneth D. Albertsen, Palmer, for Appellants.
    Max D. Garner, Birch, Horton, Bittner and Cherot, Anchorage, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

EASTAUGH, Justice.

I. INTRODUCTION

The Borough imposed a road improvement special assessment against each of nine lots William and Barbara Miller own in a newly formed local improvement district. The superior court rejected the Millers' administrative appeal challenging the assessment. We affirm, because we conclude that (1) the borough ordinance allocating paving special assessments to residential lots on a per-lot basis does not conflict with state law, and (2) a borough ordinance limiting special assessments to twenty-five percent of the lots' tax-appraised value does not apply to this local improvement district. We also reject the Millers' argument that they were public interest litigants who could not be held liable for part of the borough's appellate attorney's fees.

II. FACTS AND PROCEEDINGS

The Matanuska-Susitna Borough Assembly created Suburban Country Estates Road Paving Local Improvement District No. 245 by enacting Ordinance 97-139 in 1997. That ordinance provided that the cost of the improvement "shall be assessed equally against each property within the road paving local improvement district." The Millers own nine lots in this local improvement district. The Millers' lots had been zoned and platted for single-family residential development, but are undeveloped. Each of their lots had a 1997 tax-assessed value of $2,000 and a 1999 tax-assessed value of $4,000. When the final cost of the road paving project was calculated, the borough assessed $1,735.35 to property owners for each parcel of property they owned within the local improvement district; it assessed that amount for each of the Millers' nine lots.

At the public hearing on Ordinance 97-139 before it was enacted, the Millers objected to the borough's proposed per-lot method of assessment. They argued that each lot owner should pay a percentage of the paving costs commensurate with the proportional value of each lot to the total value of all lots in the local development district. After the assembly enacted the ordinance notwithstanding their objections, the Millers filed a superior court complaint seeking a declaratory judgment. Their complaint, filed in 1998, alleged that the borough had acted contrary to law when it assessed the costs on a per-lot basis and had acted arbitrarily and unreasonably when it assessed each lot equally even after it had acknowledged that the paving would not equally benefit each lot in the local improvement district.

In 1999 the Millers filed in the superior court an administrative appeal from the borough's assessment, asserting that the borough had erred in assessing the costs of the improvement equally among lot owners and that this method of assessment was contrary to law. The superior court consolidated the Millers' declaratory judgment action with their administrative appeal.

At oral argument on cross-motions for summary judgment, the parties represented to the superior court that they had agreed to proceed with the action under the Alaska Rules of Civil Procedure. But the court, concerned that the agreement "effectively jettison[ed] the limited appeal from a final assessment afforded by state law," decided to treat the case as an appeal of an administrative decision. The superior court confined its review to the evidence in the record created below plus Robert Ameen's affidavit submitted by the Millers to show that the assessed properties were unequally benefited. The superior court affirmed the borough's assessment against the Millers and awarded the borough attorney's fees and costs totaling $2,716.03.

The Millers appeal the denial of their administrative appeal and the award of attorney's fees against them.

III. DISCUSSION

A. Standard of Review

Because the superior court acted as an intermediate court of appeal, we independently review the borough's decision. We employ the rational basis standard when reviewing questions of law that involve the borough's expertise, and when reviewing the borough's application of law to facts when that application implicates administrative expertise or involves fundamental policy determinations. Under the rational basis standard, we defer to the borough's determination as long as it is supported by the facts and has a reasonable basis in law.

The borough's assessment determinations are presumed to be correct, and are reversed only upon a showing "of fraud or conduct so arbitrary as to be the equivalent of fraud, or so manifestly arbitrary and unreasonable as to be palpably unjust and oppressive."

When the superior court acts as an intermediate appellate court, it has broad discretion to award reasonable attorney's fees under Appellate Rule 508(e). The superior court's decision should not be disturbed unless it is "manifestly unreasonable."

B. Was the Borough's Allocation Method Contrary to State Law?

The Millers argue that the borough's per-lot assessment method violates state law because AS 29.46.060(a) mandates that improvement costs be assessed against property in proportion to the benefit received. In reply to the borough's argument that it adopted, in accordance with state law, a different but permissible method of allocating costs for road improvements in local improvement districts like the one at issue here, the Millers contend that there is no rational basis for the borough's per-lot assessment method given disparities in the size of the lots in their local improvement district.

Matanuska-Susitua Borough (MSB) Code § 03.28.140(A)(2) controls road paving special assessments like the Millers'. It allocates road improvement costs "on a per lot basis"-thus equally per lot-to residential lots in road special assessment districts:

ALLOCATION OF COSTS IN ROAD SPECIAL ASSESSMENT DISTRICTS.
(A) Assessments for costs of road and drainage construction and improvements shall be allocated among the parcels within the road special assessment district as follows:
(2) Areas zoned residential or restricted to residential use. For areas zoned residential or within subdivisions where a majority of the lots within the subdivision are restricted to residential uses under recorded conditions, covenants and restrictions, the allocation of costs shall be assessed on a per lot basis so that each lot is assessed the same amount.

Subsection .140(A)(2) is one of the borough code provisions describing the borough's procedures for assessing improvement costs and creating local improvement districts within the borough. Subsection .140(A)(2) governs road improvement special assessments and therefore encompasses road paving assessments. Accordingly, we must decide whether subsection .140(A)(2) contravenes state law governing special assessments.

Alaska Statutes 29.46.010 and .020 respectively permit municipalities to assess private property benefited by improvements and to adopt procedures for creating local special assessment districts. Alaska Statute 29.46.020(c) requires municipalities such as the borough to comply with the special assessment procedures set out in AS 29.46.030-29,46.100 if the municipality does not pre-seribe a procedure for special assessments as permitted by section .020. The borough chose to prescribe such procedures. By enacting MSB Code § 08.28.140(A)(2), the borough exercised the authority AS 29.46.020(a) granted to it. It consequently substituted its per-lot method of assessing a specific class of improvement costs-for road improvements benefiting residential lots-for the proportional benefit assessment method the legislature generally adopted in AS 29.46.060(a). It therefore "prescribed a procedure for special assessments as permitted by this section," exempting itself from having to comply with AS 29.46.060(a) with respect to road improvement special assessment districts.

Although there are other possible ways to assess landowners in a local improvement district, the per-lot method the borough chose for road improvements benefiting residential lots is presumptively valid. Accordingly, MSB Code § 08.28.140(A)(2) does not violate AS 29.46.020 or .060.

C. Did the Millers Show that the Per-Lot Method Is Irrational?

The Millers argue that the factual record does not support the borough's implicit conclusion that each lot benefited equally; they consequently argue that this court should overturn the assessments. To prevail, the Millers had to overcome the presumption of correctness that attaches to the borough's conclusion that the paving project has conferred an equal benefit on their land. To do so, the Millers had to show that the benefit to their property was grossly disproportionately low compared with the benefit conferred upon the other assessed properties.

In Kissane v. City of Anchorage, a territorial district court held before statehood that benefit to property is not limited to the immediate increase in property value to the landowner. The district court held that costs could be assessed to a landowner for increased public parking even though his land was zoned for business but used only for residential purposes. In City of Wasilla v. Wilsonoff, we held that property benefited from installation of a water main because it provided a near-by fire hydrant, even though the landowner testified that it would be difficult to hoist a fire hose up an embankment to reach her house and that fire insurance rates would not decrease for twenty years. Similarly, in Weber v. Kenai Peninsula Borough, we concluded that property benefited from installation of a gas line even though the landowner had no intention of connecting to it.

Here, the superior court concluded that the record from the October 27, 1996 public hearing on the local improvement district contained ample testimony by residents identifying the benefits from the paving project. For example, residents testified that reduced vehicle wear and tear and health benefits from reduced dust would outweigh the cost of the project. In addition, tax-assessment records indicate that the value of each of the Millers' lots increased by $2,000 during the two years following the approval of the local improvement district. Furthermore, the superior court correctly observed that "[if the [Millers] ever developed their lots, they or their successors in interest would enjoy the benefit of cleaner air, smoother travel, and increased value on par with all of the other landowners in the [local improvement dis-triet]."

The Millers supplemented the agency record with the affidavit of real estate appraiser Robert Ameen. He stated:

4. Unless the various properties within a paving local improvement district are each valued identically, they usually do not benefit equally from the road being paved.
5. A higher-valued property receives a greater benefit from the paving than does a lesser-valued property. The larger the difference between the values of the various properties within the local improving district, the greater the disparity between the benefit received by each property. Accordingly, if the cost of paving is to be allocated among the properties in accordance with the benefit received, the cost should be allocated proportionately based upon the value of each individual property.
6. It is my understanding that the Borough in this case allocated the costs of paving on a pro-rata basis, assessing each lot an identical portion of the total cost irrespective of the value of the individual property. Such an assessment is disproportionate.

This evidence does not rebut the presumption of correctness that attaches to the borough's decision or the record evidence that paving substantially benefited the Millers' parcels. Ameen's affidavit merely concludes that paving will cause the market value of properties of greater value to increase more than the market value of lower valued properties. It does not rebut the conclusion that the Millers' lots will receive a substantial benefit because paving will reduce dust and vehicle wear and tear and will increase the monetary value of each lot. Neither the evidence before the borough nor the Ameen affidavit undermines the borough's conclusion that the Millers have benefited from the paving and that when and if they develop their property they will benefit on par with the other property owners in the local improvement district.

The Millers argue that the superior court could not properly deny their cross-motion for summary judgment in reliance upon the $2,000 increase in the post-improvement tax-assessed value of their property. They contend that the borough was required to submit additional evidence proving that the increased tax valuation of their lots reflects a corresponding increase in their fair market value. They also argue that the borough has not shown that any increase in value is attributable to the paving. But this argument misconstrues the procedural posture of the Millers' superior court case. Relying on our decision in Balough v. Fairbanks N. Star Borough, the superior court treated their case as if it were an appeal of an agency decision. The court analogized the borough's assessment determination to an agency decision and the Millers' lawsuit to an appeal from that decision. Because the superior court treated the Millers' action as an administrative appeal, the civil rules did not require the borough to introduce additional evidence to demonstrate equal benefit to the properties. The relevant evidentiary record in the superior court was the borough record and the supplemental affidavit of Ameen.

The superior court did not err in concluding that the Millers did not overcome the borough's presumptively correct finding of equal benefit.

D. Did the Twenty-Five Percent Limit Imposed by MSB Code § 03.28.080(B) Apply to these Assessments?

The Millers argue in their opening brief that their assessments were illegal because they exceeded the twenty-five percent limit imposed by MSB Code § 03.28.080(B). Citing AS 29.46.020(c), the Millers contend that state law requires a borough to either follow state procedure for special assessments or create its own procedure. They argue that because the borough, by enacting subsection .080(B), adopted a procedure that proscribes special assessments exceeding twenty-five percent of the property tax value, the borough had to adhere to this limitation. The borough argues in response that it permissibly adopted a different procedure when the assembly enacted Ordinance 99-084. That ordinance confirmed the Suburban Country Estates Road Paving Local Improvement District and exempted that local improvement district from the twenty-five percent cap. The Millers' reply brief does not address the cap issue.

The superior court agreed with the borough. It held that Ordinance 99-084, which specifically permitted assessments exceeding the limit set by subsection .080(B), was "a subsequent legislative act" that released the borough "from the constraints of a prior legislative act."

The superior court was correct. Boroughs act as legislative bodies when they enact ordinances or code provisions. In its legislative capacity, the borough assembly enacted procedures for special assessments. One such enactment was MSB Code § 03.28.080(B), which imposed the twenty-five percent assessment limitation. But another was Ordinance 99-034, which superseded the existing procedure with respect to this local improvement district.

In Jefferson v. City of Anchorage, the Anchorage City Council enacted an ordinance increasing the mayoral salary at the beginning of the next mayoral term. This new ordinance contravened an existing ordinance that only permitted a salary increase within thirty days after a mayoral term began. We concluded that there is no illegality when a new legislative provision of equal dignity and authority supplants prior legislation. That holding controls here.

These assessments were not subject to the twenty-five percent limitation imposed by subsection .080(B).

E. Are the Millers Public Interest Plaintiffs Who Should Not Be As- - sessed Attorney's Fees?

A superior court sitting as an intermediate appellate court considers an award of appellate attorney's fees under Alaska Rule of Appellate Procedure 508(e) This rule gives courts broad discretion in awarding fees. Such fee awards must be justified and reasonable.

The Millers argue that the superior court erred in awarding attorney's fees to the borough because the Millers were public interest litigants, who were therefore exempt from attorney's fees.

"It is an abuse of discretion to award attorney's fees against an unsuccessful public interest plaintiff who raises a claim in good faith." A four-part test determines public interest litigant status: (1) Is the case designed to effectuate strong public policies? (2) If the plaintiff succeeds, will numerous people receive benefits from the lawsuit? (8) Can only a private party have been expected to bring this suit? (4) Would the purported public interest litigant have sufficient economic incentive to file suit even if the action involves only narrow issues lacking general importance? "We review a trial court's determination of a litigant's public interest status under the abuse of discretion standard. Such an abuse is regarded as present only where the trial court's decision appears to be manifestly unreasonable or motivated by an inappropriate purpose."

The superior court concluded that the Millers did not qualify as public interest plaintiffs because they "had a significant financial stake in this action that would only have accrued to them." The Millers do not argue persuasively to the contrary. Only they would have directly benefited had they persuaded the superior court to impose their preferred assessment scheme on the borough. Had they succeeded, other landowners in the local improvement district would have been forced to shoulder greater costs. The Millers' appeal was in their private interest.

The Millers also briefly argue that the award was excessive because it gave the borough thirty percent of its actual fees. The Millers do not adequately brief this argument, and it is unavailing in any event. The superior court gave a well-reasoned explanation for its attorney's fees award. It explained that the Millers' "procedural approach to the case and their dual filings took this matter over unnecessary ground raising both parties' fees in the process." The court also found that the Millers' appeal was "knowingly risky" in that they attempted to have "their assessment preference legislated by the court" with "almost no legal claim" to do so. There is no reason to think the superior court abused its discretion in awarding attorney's fees against the Millers.

IV. CONCLUSION

We AFFIRM the superior court order denying the Millers' appeal from the borough's final assessment. We also AFFIRM the Judgment awarding attorney's fees and costs to the borough.

      . Matanuska-Susitna Borough Ordinance No. 97-139 (1997).

      . The Millers also submitted a second motion for summary judgment on January 10, 2000, the morning of oral argument on their first motion. Their second motion asserted a new substantive ground for summary judgment. The superior court treated their second motion as an appeal of the administrative agency decision, permitted the borough to respond, and disposed of it in the same "Memorandum and Order on Cross Motions for Summary Judgment" that the Millers are appealing to this court. The superior court concluded that the argument in the second motion had not been raised at the administrative level and therefore had been waived. The Millers do not appeal the denial of their second motion, and their briefs in our court do not raise the substantive ground they argued in their second motion.

      . Weber v. Kenai Peninsula Borough, 990 P.2d 611, 613 (Alaska 1999) (citation omitted).

      . Id. (citation omitted).

      . Id. (citation omitted).

      . City of Wasilla v. Wilsonoff, 698 P.2d 656, 658 (Alaska 1985) (quoting Kissane v. City of Anchorage, 159 F.Supp. 733, 737 (D.Alaska 1958)).

      . Rosen v. State Bd. of Pub. Accountancy, 689 P.2d 478, 482 (Alaska 1984).

      . Cook Inlet Pipeline v. Alaska Pub. Util. Comm'n, 836 P.2d 343, 354 (Alaska 1992).

      . AS 29.46.060 reads in pertinent part: "(a) At any time after approval of an improvement plan, the governing body shall assess the authorized percentage of the cost against property in the district included in the plan in proportion to the benefit received...."

      . See MSB Code § 03.28.010-.180.

      . AS 29.46.010 reads in pertinent part: "(a) A municipality may assess against ... private real property to be benefited by an improvement all or a portion of the cost of acquiring, installing, or constructing capital improvements."

      . AS 29.46.020 reads in pertinent part:
      (a) A municipality may prescribe by ordinance the procedures relating to creating special assessment districts, making local improvements, levying and collecting assessment, and financing improvements

      (c) To the extent that a municipality does not prescribe a procedure for special assessments as permitted by this section, the municipality shall comply with the special assessment procedures set out in AS 29.46.030-29.46.100.

      . AS 29.46.020(c).

      . MSB Code § 03.28.140(A) reads in pertinent part: "(2) ... For areas zoned residential or within subdivisions where a majority of the lots within the subdivision are restricted to residential uses under recorded conditions, covenanis and restrictions, the allocation of costs shall be assessed on a per lot basis so that each lot is assessed the same amount."

      . AS 29.46.060 reads in pertinent part: "(a) At any time after approval of an improvement plan, the governing body shall assess the authorized percentage of the cost against property in the district included in the plan in proportion to the benefit received...."

      . AS 29.46.020(c).

      . The borough itself generally follows the proportional benefit method for assessing costs other than costs in road special assessment districts. See MSB § 03.28.080(A) (providing generally for imposition of special assessment costs "in proportion to the benefit received"). If MSB § 03.28.140(A)(2) does not apply, per MSB § 03.28.140(A)(1), the borough assesses road improvement costs in special assessment districts either by lot size or frontage length.

      . City of Wasilla v. Wilsonoff, 698 P.2d 656, 657, 658 (Alaska 1985) ("We agree with the city that its special assessment determination carries with it a 'presumption of correctness." 'If the apportionment of special assessments and the question of benefits are matters upon which reasonable men may differ, the determination by the municipal authorities will be sustained by the courts.' ") (quoting in part 2 Cmarues Antreay, Municirar Corporation Law § 14.46 (1985)); see also Weber v. Kenai Peninsula Borough, 990 P.2d 611, 614 (Alaska 1999) (reiterating presumption that municipal legislative assessment decisions are valid and applying presumption to creation of assessment districts).

      . See Wilsonoff, 698 P.2d at 657.

      . We stated in Wilsonoff that "[this presumption favoring a city council's assessment determination concomitantly places a heavy burden of proof on the challenging party." Id. at 658. We then approvingly quoted Professor Antieau: "[A] property owner seeking to overturn a special assessment against his property has the burden of proving that the assessment was grossly beyond benefit, disproportionate or otherwise illegal." Id. (quoting 2 Cmartes Awtiray, Muntcrpat Corporation Law § 14.46 (1985) (emphasis added in Wilsonoff )).

      . 159 F.Supp. 733, 738 (D.Alaska 1958).

      . 698 P.2d 656, 658 (Alaska 1985).

      . 990 P.2d 611, 616 (Alaska 1999).

      . 995 P.2d 245, 256 (Alaska 2000).

      . MSB Code § 03.28.080(B) provides: "The total amount of assessments for an improvement may not exceed the allowable cost of the improvement under A.S. 29.46.110. An assessment may not exceed 25 percent of the assessed value for real property taxation of the property assessed."

      . Matanuska-Susitna Borough Code Ordinance No. 99-034 (1999).

      . Griswold v. City of Homer, 925 P.2d 1015, 1019 & n. 3 (Alaska 1996) (citing Concerned Citizens of S. Kenai Peninsula v. Kenai Peninsula Borough, 527 P.2d 447, 452 (Alaska 1974)).

      . 513 P.2d 1099, 1101 (Alaska 1973).

      . Id. at 1102.

      . Appellate Rule 508(e) states:
      Attorney's Fees. Attorney's fees may be allowed in an amount to be determined by the court. If such an allowance is made, the clerk shall issue an appropriate order awarding fees at the same time that an opinion or an order under Rule 214 is filed. If the court determines that an appeal or cross-appeal is frivolous or that it has been brought simply for purposes of delay, actual attorney's fees may be awarded to the appellee or cross-appellee.

      . Agen v. State, Dep't of Revenue, 945 P.2d 1215, 1221 (Alaska 1997).

      . Carr-Gottstein Props. v. State, 899 P.2d 136, 148 (Alaska 1995).

      . The Millers mistakenly cite Civil Rule 82 rather than Appellate Rule 508.

      . Carr-Gottstein Props., 899 P.2d at 147 (citations omitted).

      . Id. (citations omitted).

      . Valley Hosp. Ass'n, Inc. v. Mat Su Coalition for Choice, 948 P.2d 963, 972 (Alaska 1997).

      . See Wirum & Cash, Architects v. Cash, 837 P.2d 692, 713-14 (Alaska 1992) ("Where a point is not given more than a cursory statement in the argument portion of a brief, the point will not be considered on appeal.") (citations omitted).


source: Caselaw Access Project

license: Public Domain

text:
    JOSEPH M. JACKOVICH REVOCABLE TRUST, Dolores M. Jackovich Revocable Trust, Gavora, Inc., John J. Lounsbury, Geraldine S. Lounsbury, and Haman Family Limited Partnership, Appellants, v. STATE of Alaska, DEPARTMENT OF TRANSPORTATION, Appellee.
    No. S-9686.
    Supreme Court of Alaska.
    Sept. 6, 2002.
    Edward R. Niewohner, Niewohner & Associates, P.C., Fairbanks, for Appellants.
    Mason Damrau, Assistant Attorney General, Fairbanks, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

EASTAUGH, Justice.

I. INTRODUCTION

Owners of improved real properties asserted inverse condemnation claims against the State of Alaska, complaining that information the state published about its intentions to acquire land needed for a projected road project deprived them of the full use and enjoyment of their properties, reduced the value of their properties, and constituted de facto takings. The superior court dismissed their claims on summary judgment. We affirm. Taking all permissible factual inferences in favor of the landowners, we conclude that the state did not publicly announce a concrete intention to use or condemn specific parcels of the owners' properties or engage in activity that substantially interfered with the use and enjoyment of their properties.

II. FACTS AND PROCEEDINGS

The Illinois Street project is a component of a major highway construction project called the Geist Road Extension Project, begun in Fairbanks in the mid 1970s. The Illinois Street component, if it is to be built at all, will be the final segment built in the Geist Road Extension Project. The landowners involved in this appeal own parcels of improved commercial property along Illinois Street in downtown Fairbanks. We sometimes refer to them collectively as the Jacko-vich landowners.

In 1977 the Federal Highway Administration authorized the Alaska Department of Transportation (DOT) to begin the location phase of the Geist Road Extension Project. Initial engineering and environmental impact studies were completed in 1983. Public hearings concerning the location of the project were held in 1988. DOT received federal location approval by 1985. The project was undertaken in segments, several of which were completed in the late 1980s and early 1990s. The design for the Illinois Street portion of the project was revised several times between 1985 and 2000. The plans have contemplated a range of three-, four-, and six-lane highway designs. The initial location approval contemplated that the IlHi-nois Street connector would be constructed as part of the Aurora Subdivision-to-Lemen-ta Subdivision segment; but this segment was completed in 1991 without the Illinois Street connector. Unforeseen design complications caused DOT to abandon this plan and ultimately to adopt the plan, known as the Tilinois Street/Minnie Street connector plan, that is involved in this dispute. No final design had been approved as of February 1, 2000, when the superior court heard argument on eross-motions for summary judgment in this lawsuit.

Throughout the phases of the Geist Road and Illinois Street projects, DOT made efforts to notify the landowners and the public of the progress of the projects, as federal law required. These efforts included issuing notices of public hearings, workshops, and local government hearings and meetings, and publishing the Statewide Transportation Improvement Program. DOT also developed a mailing list which included individuals and businesses who owned or occupied property near the highway corridor. The landowners in this case were on this mailing list and received several installments of DOT's "Ili-nois Street Newsletter." For example, the January 1998 Newsletter stated:

Right-of-Way Begins Soon
The Federal funds are set aside and will be obligated this year for the right-of-way acquisition along Illinois Street. The right-of-way phase should take approximately two years to complete.

One of the landowners, John Lounsbury, wrote DOT in April 1997 asking the state to execute an advance acquisition of his property. DOT declined, even though in 1998 it had acquired the Rose Building, which was located in the vicinity and was projected to be within the scope of the Illinois Street right-of-way.

B. The Inverse Condemnation Suit

In November 1997 the landowners filed their inverse condemnation complaint against the state, alleging de facto takings of and damage to their properties. They moved for partial summary judgment, arguing that no material facts were in dispute as to their claim that DOT's pre-condemnation publicity had reduced the economic value of their properties and required just compensation. In support of their motion, the landowners submitted evidence of lost property value, public announcements of the Illinois Street project, and the state's acquisition of the Rose Building. DOT opposed the motion and eross-moved for summary judgment.

In support of DOT's opposition and motion, John Miller, DOT's Chief Right-of-Way agent in Fairbanks at relevant times, swore in an affidavit that "DOT has never announced an unequivocal intention to acquire any of the particular real properties along Tilinois Street." DOT argued that the landowners' claims failed because the landowners did not provide evidence of DOT's intent to condemn their specific properties and did not rebut Miller's statement.

At oral argument on the motions, the landowners attempted to supplement their exhibits with copies of letters DOT wrote the landowners addressing the future acquisition of their specific properties. The state objected to introducing these supplemental exhibits. The superior court ruled that it would not consider the exhibits unless an appropriate motion were filed. The landowners never filed a motion asking the court to accept the exhibits.

In March 2000 the superior court denied the landowners' motion for summary judgment and granted the state's cross-motion for summary judgment. The court first reasoned that the publicity complained of could not be considered a "de facto" taking because it did not amount to either a physical invasion of property or a direct legal restraint on its use. The court further reasoned that the "condemnation blight" doctrine did not apply because the property was never actually condemned.

The superior court then ruled that the claim was properly evaluated under precedents establishing an inverse condemnation cause of action based solely on pre-condem-nation publicity. The court concluded that the Jackoviech landowners could not establish an essential element of this cause of action: proof of a public statement of the state's "concrete" intention to acquire specific property. The court determined that the landowners' claims "contain no allegation of any public expression of intent to use a specific piece of property." The court concluded by reasoning that this requirement properly accommodated the public interest in community planning while protecting the landowners' constitutional right to just compensation.

The landowners moved for reconsideration and attached the disputed supplemental exhibits to their reconsideration motion. The superior court denied their reconsideration motion. It appears that as of April 4, 2000, when the superior court entered final judgment, the state had commenced no condemnation proceedings for any of these particular properties.

The landowners appeal.

III DISCUSSION

The landowners advance alternative theories of recovery. First, they argue that existing Alaska law requires that property owners be compensated when government publication of an “unequivocal intent” to appropriate their property damages them, even when their property is not ultimately condemned. They further argue that the publicity in this ease satisfies this intent standard. Second, they argue that they should recover under the case-specific analysis we use to decide whether government action that does not constitute a “per se” taking is nonetheless a compensable taking.

As to the first issue, we conclude that the superior court correctly determined that the publicity in this case does not satisfy the “concrete intention” test. As to the second, we conclude that the case-specific approach is inapplicable because the existing pre-con-demnation publicity cause of action adequately addresses the problems at hand. We further conclude that the case-specific approach is inapplicable where the challenged government action does not directly limit the property owner’s use or exclusive control of her property.

A. Standard of Review

We review grants of summary judgment de novo. Summary judgment should be affirmed if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. We read the record in the light most favorable to the non-moving party and draw all reasonable factual inferences in his or her favor. We review questions of constitutional law, such as whether a taking has occurred, de novo. We will adopt the rule of law that is most persuasive in light of precedent, reason, and policy.

Thus, in reviewing the superior court’s conclusion that the state had no concrete intention to condemn the landowners’ properties, we draw all reasonably permissible factual inferences in favor of the landowners, the opponents of the state’s cross-motion for summary judgment.

B. It Was Not Error To Dismiss the Landowners’ Inverse Condemnation Claim on Summary Judgment.

1. Landowners’ Ehrlan-der/Lange/Homeward Bound theory

The landowners’ main argument on appeal is that under existing Alaska law, the state is constitutionally required to compensate them because, by publishing an “unequivocal” pre-condemnation intent to appropriate their properties, it deprived them of the economic advantages of ownership. They rely on two Alaska cases—Ehrlander v. State, Department of Transportation, and Homeward Bound, Inc. v. Anchorage School District-—as well as a Washington case— Lange v. State—which we approvingly discussed in Ehrlander:

Before discussing the legal issues presented, we note the factual posture of this case. It involves the state’s pre-condemnation publication of notices, information, plans, and proposals pertaining to a road improvement project component that, as of the time the parties sought summary judgment, might or might not be built. This component of the overall project had not became final, and its scope was uncertain. Its impact on the landowners’ parcels was consequently uncertain, and the publications attributed to the state reflect this uncertainty. Likewise, there was uncertainty about what specific parcels or portions thereof might be acquired. We also note that these properties were improved with commercial buildings and that there is no evidence the state actively interfered with the beneficial use of these properties by (1) limiting their development, improvement, or occupancy; (2) denying the landowners any permits needed to develop, improve, or use these properties; (8) notifying tenants they would have to vacate or would be compensated for vacating; or (4) informing the owners that in event of condemnation, they would not be compensated for maintaining or improving their properties. Instead, the common thread in the landowners' superior court affidavits is that they are unable to sell their properties and that they lost rental income because pre-condemnation announcements discouraged buyers and renters and made improvements infeasible or economically imprudent.

The Alaska Constitution provides that "private property shall not be taken or damaged for public use without just compensation. "Private property is taken or damaged for constitutional purposes if the government deprives the owner of the economic advantages of ownership." "Once private property is taken or damaged, the owner is entitled to be placed in the same position as he would have occupied absent the governmental interference."

We have held that under some circumstances landowners may be entitled to compensation from government entities whose activities diminish the value of their properties even though the government never actually condemns the properties. Thus, in Homeward Bound, we stated:

[IIn cases such as this one where the alleged taking is based on precondemnation decisions concerning the subject property, the objective manifestations of the government's intention to take the property are critical to the decision whether there was a taking. This is because the government's indications of its intention to condemn the property are the source of the owner's claimed damages.[]

Homeward Bound claimed that the municipality and the school district had inversely condemned its unimproved property by designating it as a potential school site, temporarily diminishing its value. In discussing cases "where the alleged taking is based on precondemnation decisions concerning the subject property," we referred in Homeward Bound to California law, originating in Klopping v. City of Whittier, that allows landowners to recover for loss in the value of their properties due to governmental pre-condemnation activity. The California Supreme Court held in Klopping:

[A] condemnee must be provided with the opportunity to demonstrate that (1) the public authority acted improperly either by unreasonably delaying eminent domain action following an announcement of intent to condemn or by other unreasonable conduct prior to condemnation; and (2) as a result of such action the property in question suffered a diminution in market value.[ ]

We then held in Homeward Bound that to recover for damages caused by pre-condem-nation governmental activities that do not otherwise amount to a de facto taking, an Alaska plaintiff must show a concrete indication that the state intended to condemn the property. Approvingly citing one of Klop-ping's early progeny, we explained:

Later, in Selby Realty, Co. v. City of San Buenaventura [10 Cal.3d 110, 109 Cal.Rptr. 799, 514 P.2d 111 (1978)], the [California Supreme Court] held that the mere enactment of a general plan showing proposed streets extending through private property did not constitute a taking because there was "no present concrete indication that the county either intends to use plaintiff's property for the proposed streets or that it intends to acquire the property by condemnation." The court distinguished Klopping on the ground that "the adoption of a general plan is several leagues short of a firm declaration of an intention to condemn property." []

In considering the claims of the Jackovich landowners, the superior court characterized Alaska takings law as requiring "a public statement of 'concrete' intention to acquire specific property before a Klopping claim will He." Applying this rule, the superior court dismissed the landowners' claim on summary judgment. It concluded that "even Klopping-the most expansive holding this court has been able to identify in terms of affording compensation to disadvantaged property owners-does not reach the facts of the present case, which contain no allegation of any public expression of intent to use a specific piece of property."

The Jackovich landowners do not ask us to adopt Klopping, which they say may have adopted a requirement-that the government have acted improperly-that is foreign to established inverse condemnation law in Alaska. They instead assert that in Ehri-ander we adopted a broad doctrine of com-pensability by relying on principles discussed by the Washington Supreme Court in Lange v. State Our Ehrlander opinion approvingly discussed as follows the reasoning of the Washington court in Lange:

In our view this reasoning should be applicable not merely when a condemnation action is formally begun, but whenever a property owner is, by reason of an impending condemnation, deprived of the economic advantage of ownership. That was the rationale of the Washington court in Lange:
Onee the state manifested its unequivocal intent to appropriate the Lange property, appellants were precluded from exercising their business judgment and selling the property before the market fell further. Moreover, appellants were precluded from taking any steps to counteract the market decline by making improvements on the land or otherwise changing its use. Thus appellants were deprived of the most important incidents of ownership, the rights to use and alienate property.
547 P.2d at 288. We thus agree with Lange and believe that its holding should be applicable here. As the Lange test does not require either extraordinary delay or a bad faith motive to depress land prices, the state's argument that the absence of these factors means that Ehrlan-der has not made a prima facie case of an imputed taking must fail.[]

Ehrlander, like Lange, asserted claims that the government engaged in pre-condem-nation activity that caused his unimproved real property to decline in value before the state began condemnation proceedings to acquire the land. Ehrlander claimed that the state's unreasonable delay in bringing the condemnation proceedings after it announced its intention to use his property for a highway project resulted in an imputed taking. The superior court granted summary judgment to the state because the state did not unreasonably delay or have a bad faith motive to depress land prices. Holding that those were not requirements for a claim under Lange, we reversed and remanded for consideration of Ehrlander's imputed taking claim and for application of the four-element test set out in Lange.

Lange filed his inverse condemnation claim about one year before the state filed an eminent domain action to acquire land he had purchased to develop and sell. The Washington Supreme Court applied a four-element test to decide in the formal condemnation proceeding whether to advance the date of valuation. Lange is properly regarded, like Ehrliander, as an example of an early valuation eminent domain case.

The four-element Lange test does not expressly apply to or encompass the claims of the Jackoviech landowners. Rather than trying to advance the date of taking for valuation purposes where it is undisputed that the state has taken the property, they are trying to establish that there was a taking; it is the taking that is disputed, not the date when it occurred. And the Jackovich landowners do not hold unimproved property which they had acquired to develop and sell; their property was income producing and continued to produce at least some income at pertinent times. If the state cancels the Illinois Street part of the project without acquiring their properties, the prospect of condemnation will no longer arguably affect the income their properties generate. On its face, the Lange test does not appear to apply to an inverse condemnation claim where the state never acquires the property.

Nonetheless, we recognized in Homeward Bound that pre-condemnation governmental activity could in theory amount to a temporary taking that would entitle an owner to compensation even if the plan to condemn were abandoned. One can imagine that pre-condemnation publicity could depress income actually realized from improved commercial property, leading to a temporary taking that requires compensation. But it is not so obvious what standards should be applied to such a claim. How long must an owner endure such publicity before it becomes a compensable temporary taking? What decline in value is large enough to be cognizable? Our decisions do not answer those questions.

We do not need to explore those issues here, nor others that may arise from permitting an inverse condemnation claim based on pre-condemnation publicity where no eminent domain condemnation has yet occurred and may never occur. We think that at a minimum in such a case, the government must have publicly announced a present intention to condemn specific properties, and it must have done something that substantially interferes with the landowners' use and enjoyment of their properties. These minimal requirements present two insurmountable obstacles to the claims of the Jackovich landowners in this case as it is presented to us.

a. DOT has not expressed a present concrete intention to acquire any specific property.

First, the public announcements attributable to the state, even taking all permissible factual inferences in the landowners' favor, fall short of permitting a finding that DOT expressed a present concrete intention to condemn specific property. The landowners argue that the superior court erred in reaching this conclusion. They point to maps and newsletters identifying their properties as land to be condemned under the Illinois Street project. They refer to the January 1998 DOT Newsletter passage we quoted above in Part ILA. The landowners also point to correspondence, contained in supplemental exhibits, discussing the possibility of condemnation. The supplemental exhibits included letters from DOT to the landowners addressing future acquisition of their specific properties. One letter stated that "a portion of your property will be required for additional right-of-way for the referenced highway project," and another purported to announce "our current schedule and expectations for this project-specifically the acquisition of your property at 224 to 226 Illinois Street." As previously mentioned, the superior court refused to consider these letters at oral argument on the cross-motions for summary judgment pending an appropriate motion, and no such motion was ever brought.

Read in the light most favorable to the landowners, the evidence (including the rejected supplemental exhibits) does not reasonably permit an inference that DOT had expressed a present concrete intention to condemn specific portions of the landowners' properties in the near future.

First, the maps, newsletters, and any other general publicity produced by DOT indicating that the Illinois Street Extension would pass through certain private properties are insufficient to constitute the requisite "present concrete intention" to acquire specific property. In Selby Realty, the California Supreme Court held that "adoption of a general plan is several leagues short of a firm declaration of an intention to condemn property. The court explained that imposing liability on the basis of such publicity would either cause the process of community planning "to grind to a halt," or else reduce such planning to "vacuous generalizations regarding the future use of land." This reasoning applies to all of the general publicity at issue in this case. DOT should be encouraged to provide meaningful notice to the public of major projects that will affect private development; imposing liability on the basis of such publicity would have exactly the opposite effect.

Second, the specific letters from DOT to the landowners concerning future acquisition of their properties are likewise insufficient. Read in the light most favorable to the landowners, a fact-finder could reasonably conclude that DOT intended to acquire their property at some unspecified future time. But our intent test requires a present concrete intention to acquire property, and the letters cannot be fairly read to satisfy this test. None of the letters expresses an intent to initiate acquisition proceedings immediately. Indeed, the three letters that most clearly express DOT's intent to acquire specific properties all indicate that hazardous substances investigations must be performed before fair market valuations for the properties can be determined. One of the letters indicates that the "right of way acquisition process for this project" would not even begin for a full year from the date of the letter, and another letter advised the property owner to undertake planned improvements despite DOT's intention to acquire the property in the future due to anticipated complications with site contamination and obtaining approval to acquire the property via the "advanced acquisition" process.

The Jackoviech landowners have not pointed to any case supporting their claim that the letters in this case are sufficiently definite to satisfy the "present concrete intention" requirement, and we are aware of none. In Klopping, the California Supreme Court held that the city demonstrated a sufficiently specific intent to condemn property when it initiated condemnation proceedings, dismissed the action, but declared its intention to take the property in the future. But in this case the state had not initiated condemnation actions regarding any of the properties at the time the superior court entered its final order.

Conversely, in Homeward Bound we held there was no "concrete indication" to acquire specific land despite the fact that the Anchorage municipal assembly had passed two resolutions designating the owner's property as a school site, because the school district, which had final authority to approve the site, had not done so. DOT's intention to acquire the Jackovich landowners' properties is at least as indefinite. The Illinois Street Project has gone through numerous changes, and there was no finalized plan at the time the superior court entered judgment in this case.

b. DOT has not substantially interfered with the Jackovich landowners' property rights.

There is no indication the state did anything more than make announcements, prepare and publish plans, and provide publicity concerning the project. As noted above, there is no evidence that the state actively interfered with the landowners' beneficial use of their properties, such as by prohibiting them from using their properties beneficially or denying needed permits.

c. Ehrlander and Lange are inapplicable because the Jackovich landowners' properties have not been condemned. '

The Jackovich landowners seem to imply that they have stated a legally sufficient claim under the rule of Lange which we applied in Ehrlander. But in those cases the state ultimately condemned the claimant's property. Lange and Ehrlander are therefore properly regarded as early valuation eminent domain cases; they do not establish the appropriate standard for reviewing the state's pre-condemnation conduct where condemnation proceedings are either abandoned or never initiated.

2. Landowners case-specific Sandberg theory

The landowners briefly advance an alternative inverse condemnation theory. They assert that we should consider their claim under the case-specific analysis we apply in deciding whether government action has effected a compensable taking even though it does not fall into the two recognized classes of per se takings. Apparently in support of this alternative theory, their reply brief argues that the evidence demonstrates that the state engaged in "unreasonable and negligent conduct."

The state neither physically invaded these properties nor by regulation denied the owners all economically feasible use of their properties. The state's alleged acts here consequently do not fall within either recognized class of per se takings. But that does not mean, as the Jackovich landowners may assume, that we must consider the state's alleged acts in light of the case-specific analysis we apply to non-per se, or ad hoc, alleged takings.

We have never applied the case-specific analysis to a case involving pre-condemnation governmental activity. We have applied it to date only to cases in which the government has, in its governmental capacity, allegedly restricted landowners from using their property or deprived them of the exclusive use of their property.

We are reluctant to apply this doctrine to a pre-condemnation case. Doing so would seem to needlessly parallel or muddy the remedy discussed in Part III.B.1 above; The landowners' relatively terse arguments provide no compelling reason to do so in this case.

Moreover, it is not clear how the case-specific factors we have identified might apply in such a case. The fourth factor-the legitimacy of the interest advanced by "the regulation or land-use decision"-implicitly recognizes that an ad hoe takings claim turns on an action having the purpose of affecting the landowner's property rights. But there is no indication here the actions attributed to the state had any purpose of affecting or limiting the owners' rights or use of the affected properties. The complained-of actions were taken to give the owners and the community notice of the project's potential scope and progress.

Likewise, the state correctly argues that the landowners' opening brief does not substantively discuss any factor other than economic impact, and observes that the state's actions were federally required. The landowners simply argue in their reply that the legitimacy of the state's interest is lost when the state's conduct "becomes negligent and unreasonable." Not only did they not discuss this factor in their opening brief, they do not support this assertion with authority. If we were to accept this proposition, it would seem to require an inquiry about the reasonableness of the government's actions in every case involving a proposed public works project in which no de jure acquisition oceurs. At first glance, this would seem to demote takings law from the realm of constitutional protection to the land of ordinary negligence.

We consequently decline to decide whether to apply the case-specific analysis in this case.

IV. CONCLUSION

For these reasons, we AFFIRM the grant of summary judgment to the state.

      . The landowners are the Joseph M. Jackovich Revocable Trust, the Dolores M. Jackovich Revocable Trust, Gavora, Inc., John J. Lounsbury, Geraldine S. Lounsbury, and the Haman Family Limited Partnership. The Jackovich trusts own two parcels containing four lots; Gavora, Inc. owns three parcels containing three lots; the Haman partnership owns five lots; and the Lounsberrys own two lots.

      . The landowners filed their First Amended Complaint in November 1999.

      . The court explained that the condemnation blight doctrine is effectively a rule of evidence for setting the proper valuation date in the just compensation phase of an eminent domain proceeding. See 8A NicHots on Eminent Domam § 18.04[3] (3d ed.1998).

      . Under this theory, the fact that the property is never actually condemned does not bar the conclusion that a taking has occurred.

      . Homeward Bound, Inc. v. Anchorage Sch. Dist., 791 P.2d 610, 614 (Alaska 1990).

      . Balough v. Fairbanks N. Star Borough, 995 P.2d 245, 254 (Alaska 2000).

      . Id.

      . Id.

      . Anchorage v. Sandberg, 861 P.2d 554, 557 (Alaska 1993); Triangle, Inc. v. State, 632 P.2d 965, 968 (Alaska 1981) ("It is only when a trial court concludes that the landowner has presented a valid claim that the case is submitted to the jury for a determination of the extent of the taking and the amount of compensation that must be paid by the state.”) (citations omitted).

      . Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).

      . 797 P.2d 629 (Alaska 1990).

      . 791 P.2d 610 (Alaska 1990).

      . 86 Wash.2d 585, 547 P.2d 282 (1976).

      . 797 P.2d at 633-35.

      . Alaska Const. art. I, § 18. "The requirement that the condemner pay just compensation when property is damaged provides broader protection for private property rights than the fifth amendment to the United States Constitution." Homeward Bound, 791 P.2d at 614 (citations omitted).

      . Homeward Bound, 791 P.2d at 614 (citations omitted).

      . Id. (citations omitted).

      . Id.

      . Id. at 613-14.

      . 8 Cal.3d 39, 104 Cal.Rptr. 1, 500 P.2d 1345 (1972).

      . Id. at 1355.

      . Homeward Bound, 791 P.2d at 614.

      . Id. (citation omitted).

      . E.g., City of Kenai v. Burnett, 860 P.2d 1233, 1240 (Alaska 1993) (holding that city did not demonstrate "unequivocal intention" to take easement); Homeward Bound, 791 P.2d at 614 (holding that no taking occurred because municipality's "mere designation" of property as school site was not a "concrete indication" that municipality intended to conderan property).

      . As we will see, this case does not turn on application of the Klopping requirements. The superior court appears to have relied on the case only to demonstrate that under the "most expansive" doctrine, i.e., the doctrine most favorable to the landowners, the state was still entitled to summary judgment. We have not expressly adopted Klopping as a statement of law governing an inverse condemnation claim for a government's precondemnation activities. Because the landowners do not urge us to apply Klopping in this case, it is not necessary to decide here whether Alaska would recognize a Klopping claim.

      . 86 Wash.2d 585, 547 P.2d 282 (1976).

      . Ehrlander, 797 P.2d at 635.

      . Id. at 633.

      . Id. at 635.

      . Lange, 547 P.2d at 283.

      . Id. at 288.

      . Id. at 283, 288 (characterizing issue as whether valuation date in condemnation trial should be advanced due to pre-condemnation conduct and concluding that it should). The Washington appellate courts have not addressed the question whether the Lange test would apply to a case in which the property in question was not ultimately condemned, but it is highly doubtful that Lange would be applied in such a case. The Washington Supreme Court's discussion of Lange in subsequent cases suggests that the Lange rule is only applicable to cases in which property is actually condemned. E.g., State v. McDonald, 98 Wash.2d 521, 656 P.2d 1043, 1050 (1983) (stating that Lange merely modifies time of valuation in certain cases where doing so is necessary to award just compensation); Brazil v. City of Auburn, 93 Wash.2d 484, 610 P.2d 909, 916 (1980) (citing Lange for the proposition that "[the measure of damages is the fair market value of the property at the date of trial, unless fairness to the owner requires the value to be set as of some other date").

      . Homeward Bound, 791 P.2d at 613-15 (considering whether temporary designation of property as school site constitutes taking); see also Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, -, 122 S.Ct. 1465, 1470, 152 L.Ed.2d 517 (2002) (considering whether imposing "temporary" moratoria on development constitutes per se taking).

      . Selby Realty Co. v. City of San Buenaventura, 10 Cal.3d 110, 109 Cal.Rptr. 799, 514 P.2d 111, 116 (1973) (holding that no actual controversy existed between property owner and county where general plan showed streets running through owner's property because plan could not be read to constitute "present concrete indication that the county either intends to use [the owner's] property for the proposed streets or that it intends to acquire the property by condemnation").

      . E.g., Barthelemy v. Orange County Flood Control Dist., 65 Cal.App.4th 558, 76 Cal.Rptr.2d 575, 582 (1998) (collecting cases regarding required level of state interference to make out Klopping inverse condemnation claim and holding that public entity's conduct must have significantly invaded or appropriated use or enjoyment of claimant's property).

      . 109 Cal.Rptr. 799, 514 P.2d at 117.

      . Id.

      . 104 Cal.Rptr. 1, 500 P.2d at 1348.

      . 791 P.2d at 614.

      . -The court in Selby Realty stated:
      The county has not placed any obstacles in the path of plaintiff in the use of its land. Plaintiff has not been refused permission by the county to build on or subdivide its county land, and its posture is no different than that of any other landowner along the streets identified in the plan. Furthermore, the plan is subject to alteration, modification or ultimate abandonment, so that there is no assurance that any public use will eventually be made of plaintiff's property.
      109 Cal.Rptr. 799, 514 P.2d at 119. See also Jones v. City of Los Angeles, 88 Cal.App.3d 965, 152 Cal.Rptr. 256, 261 (1979) ("[A] showing that the [entity's] conduct went beyond mere general planning may not in itself be sufficient to state a cause of action. The claimant must show that obstacles were placed in plaintiffs' path in the use of this land.").

      . 547 P.2d at 288.

      . 797 P.2d at 634.

      . Id. at 632; Lange, 547 P.2d at 283.

      . R & Y, Inc. v. Municipality of Anchorage, 34 P.3d 289, 293 (Alaska 2001) (stating that per se taking can result through physical invasion of land or application of regulation that deprives landowner of all economically valuable use of land); Beluga Mining Co. v. State, Dep't of Natural Res., 973 P.2d 570, 575 (Alaska 1999); Anchorage v. Sandberg, 861 P.2d 554, 557 (Alaska 1993); see generally Palazzolo v. Rhode Island, 533 U.S. 606, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001) (affirming state court rejection of Lucas takings claim where state regulated wetlands but did not deprive owner of all economic use of property, and remanding for consideration of owner's claims under Penn Central analysis); Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992).

      . The case-specific takings clause analysis originates in the Supreme Court's decisions. See, e.g., PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 83, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980) (identifying several factors to determine whether ' governmental action has gone beyond mere regulation, including "the character of the governmental action, its economic impact, and its interference with reasonable investment-backed expectations") (citation omitted); see also Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978) (explaining that courts must "engagle] in ... essentially ad hoc, factual inquiries" to determine when "justice and fairness" require public as whole rather than small number of disproportionately burdened landowners bear costs of regulation).

      . E.g., R & Y, Inc., 34 P.3d 289 (Alaska 2001) (where municipality imposed improvement setback restriction in wetland area); Balough v. Fairbanks N. Star Borough, 995 P.2d 245 (Alaska 2000) (where junkyard was no longer permissible use following rezoning); Cannone v. Noey, 867 P.2d 797 (Alaska 1994) (where state imposed restrictions on subdivision); Anchorage v. Sandberg, 861 P.2d 554 (Alaska 1993) (where municipality's decisions in opposing improvement district prevented landowner from creating improvement district); State, Dep't of Natural Res. v. Arctic Slope Reg'l Corp., 834 P.2d 134 (Alaska 1992) (where state law required well operators to disclose their drilling results to state, thus denying them exclusive use of their data).

      . The factors are: "(I) the character of the governmental action; (2) its economic impact; (3) its interference with reasonable investment-backed expectations; and (4) the legitimacy of the interest advanced by the regulation or land-use decision." R & Y, 34 P.3d at 293.


author: MANNHEIMER, Judge. COATS, Chief Judge,

text:
    Lynn E. LACEY, Appellant, v. STATE of Alaska, Appellee.
    No. A-7883.
    Court of Appeals of Alaska.
    Sept. 6, 2002.

      Kathleen A. Murphy, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
    Kim S. Stone, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

Lynn E. Lacey absconded from the Palmer Correctional Center on September 15, 1998, shortly before he was to have been transferred to a private prison in Arizona. Lacey lived as a fugitive for the next thirteen months. Using the alias "Allen Mitchell", he obtained a new driver's license and forged a new life in the Trapper Creek area. He obtained employment, attended church, purchased three vehicles, and was preparing to buy property in a new subdivision when he was arrested in October 1999.

Following Lacey's arrest, he was indicted for second-degree escape. His proposed defense was necessity. Lacey's attorney asserted that, on the day before Lacey ab-seconded, a fellow inmate told Lacey that he would be killed as soon as he was transferred to the Arizona prison-thus prompting Lacey to escape from prison to preserve his life.

Superior Court Judge Eric Smith considered Lacey's offer of proof and concluded that it was deficient in two respects. First, Lacey never informed the prison authorities of the alleged threat and never tried to obtain their help and protection. Judge Smith therefore ruled that Lacey had failed to present a prima facie case that he had no reasonable alternative to absconding from prison. Second, escape from prison is a continuing offense. Even assuming that Lacey's initial escape from prison might have been justified, Lacey remained a fugitive for more than a year. During this time, he concededly did not contact the authorities or ask a lawyer (or any other person) to assist him in negotiating with the authorities Judge Smith therefore ruled that Lacey had failed to present a prima facie ease that he had no reasonable alternative to remaining a fugitive. For these two reasons, Judge Smith concluded that Lacey was not entitled to present a necessity defense to the jury.

The main question presented in this appeal is whether Lacey's offer of proof was sufficient to establish a prima facie case of necessity-whether it constituted the "some evidence" of necessity that is required under AS 11.81.320(b) and AS 11.81.900(b)(2)(A) before a defendant is entitled to a jury instruction on this issue. We agree with Judge Smith's analysis of Lacey's offer of proof, and we therefore uphold his ruling.

Before we discuss this issue, we will address a separate point that Lacey raises in this appeal: Judge Smith's purported failure to grant Lacey's request for a continuance of trial.

Judge Smith's purported failure to grant a continuance of trial

Just before jury selection was scheduled to begin-and before Judge Smith ruled that Lacey's proposed necessity defense was not available-Lacey's attorney asked Judge Smith to delay the trial so that the defense could track down a witness: the inmate who allegedly had threatened Lacey. Lacey's attorney admitted that they did not know where this man was, but she told Judge Smith that they were trying to locate him through Department of Corrections records.

In response, Judge Smith noted that Lacey's trial was going to be interrupted for a week anyway (because of other matters already scheduled). Thus, even if the court denied the requested continuance, Lacey's attorney would still have two weeks to find her witness before the State rested its case. Judge Smith declared that, given this scheduling situation, "we can sort of have our cake and eat it, too". In other words, jury selection could commence as scheduled, but the defense attorney would effectively receive the benefit of a continuance.

Lacey's attorney did not argue that two weeks was insufficient, nor did she otherwise object to Judge Smith's suggested solution of the witness problem. Her only response was, "So we'd start [Jury selection] tomorrow?"

Later, Lacey waived his right to a jury trial and consented to a bench trial As a result, the State's case ended earlier than anticipated. At this point, Lacey's attorney expressed reluctance to begin her case; she implied that she was not ready to proceed because "we were [not] supposed to [begin] our defense [until] next week". Judge Smith conceded that he "[had] thought [that the State's] case would take longer". He told Lacey's attorney that, "if need be, we will continue [this trial] until a week from Monday, so you can find this [witness] regarding the threat".

However, Judge Smith also noted that the missing witness's testimony was probably not necessary-because the judge had already accepted the defense offer of proof that Lacey had been threatened. He told the defense attorney, "[There is no} need [for] you to confirm evidence that you've presented through your offer of proof." (This issue of Lacey's proposed defense of necessity and his accompanying offer of proof is explained more fully later in this opinion.)

Judge Smith offered to recess Lacey's trial for a day so that the defense attorney could confer with Lacey, both about this matter and the related issue of whether Lacey should take the stand. The defense attorney responded, "[That would be a good idea." The next day, when court reconvened, the defense attorney told Judge Smith that she intended to rest her case without presenting any more evidence.

Given this record, we conclude that Lacey failed to preserve his claim of a denied continuance.

Moreover, any error would be harmless. Even if this missing witness had been located, and even if he had waived his Fifth Amendment privilege and testified that he had threatened Lacey, this would only corroborate the assertions of fact contained in Lacey's offer of proof. And, as we discuss in the next section, this offer of proof was insufficient to establish a prima facie case of necessity.

The law of necessity as it applies to escapes from prison

Under AS 11.81.320(a), Alaska law recognizes the defense of necessity "to the extent permitted by common law". As used in this statute, the term "common law" refers to "the evolution of [the] law through court decisions". Thus, the definition of the necessity defense "is not limited to the state of the law at any particular time in the past". Rather, the legislature intended "to give the courts the power to define the specifics of the defense of necessity in Alaska".

The necessity defense is premised on the concept that it is sometimes necessary to break the law in order to prevent a worse evil. As defined in our case law, the necessity defense comprises three basic elements: (1) the defendant must have violated the law to prevent a significant evil, (2) there must have been no adequate alternative method to prevent this evil, and (8) the harm caused by the defendant's violation of the law must not have been disproportionate to the foreseeable harm that the defendant was trying to avoid. In Wells v. State, 687 P.2d 346 (Alaska App.1984), we elaborated this definition, explaining how these three basic elements should be interpreted when necessity is raised as a defense to an escape from prison.

First, we held that escape is a continuing offense. That is, offenders who ab-second from custody continue to commit escape for as long as they remain away from custody. Second, because escape is a continuing offense, we held that "[a]) defendant relying on necessity to justify an escape must present some evidence justifying his continued absence from custody as well as his initial departure".

Next, we explained how the second basic element of necessity-the lack of an adequate alternative to breaking the law-should be interpreted in escape cases.

The defendant in Wells claimed that his initial escape from prison was justified because prison officials failed to give him adequate medical attention and also neglected his need for psychological counseling. We flatly held that such evidence, even if believed, "was insufficient as a matter of law to raise a necessity defense".

The Wells opinion does not directly explain this legal conclusion, but the holding appears to be based on the interpretation of the necessity defense announced by the California Court of Appeal in People v. Lovercamp, 43 Cal.App.3d 823, 118 Cal.Rptr. 110 (1974). The California court's analysis is quoted in footnote 2 of Wells. Under this interpretation of the necessity defense, prisoners relying on necessity to justify an escape from custody must offer evidence that either (1) there was no time to seek a remedy through the prison administration or the courts, or (2) the prisoner had made similar requests or complaints in the past, and these had proved futile.

In Wells the defendant offered no evidence to show that he had sought administrative or judicial remedies for the alleged lack of medical care. Thus, the fact that he may have actually needed better medical care was, as a matter of law, not sufficient to establish a prima facie case for a necessity defense.

The defendant in Wells also offered evidence that he had been threatened by fellow prisoners after he revealed their plan to steal some marijuana. We held that this evidence was likewise insufficient, as a matter of law, to raise the issue of necessity. We reached this conclusion because (1) Wells failed to offer evidence that he had "tried unsuccessfully to obtain protection within the institution" and, additionally, because (2) Wells failed to offer evidence that he "turned himself in after obtaining his freedom" or that he "could justify his continuing absence" from custody.

Employing the rules of law announced in Wells, we now analyze Lacey's case.

Lacey failed to offer sufficient evidence to raise the issue of necessity

Before a defendant is legally entitled to argue the defense of necessity (or any other defense defined in the Alaska criminal code) to the trier of fact, the defendant must present "some evidence" to put the matter at issue. In this context, "some evidence" is a term of art; it means evidence which, if viewed in the light most favorable to the defendant, is sufficient to allow a reasonable juror to find in the defendant's favor on each element of the defense.

As explained above, one of the three basic elements of the necessity defense is that the defendant had no adequate alternative to breaking the law. From the very beginning, Lacey's attorney admitted that Lacey's case was "weak" on this element. The defense attorney conceded that Lacey "could have gone to [prison] counselors about the death threat", but she asserted that Lacey had not done this because he suspected that the counselors would not believe him.

(Lacey had just litigated and lost an administrative appeal of the decision to transfer him to Arizona. Lacey had opposed the transfer for personal reasons unrelated to his safety. Having lost this appeal, Lacey apparently suspected that prison officials would not believe him if, on the day scheduled for his transfer, he told the officials that he had just been threatened with death if he went to Arizona.)

In addition to the issue of whether Lacey availed himself of administrative procedures for seeking help and protection before he absconded from prison, Judge Smith noted that Wells requires a defendant to offer evidence to justify his continued absence from custody. When the judge asked Lacey's attorney to state her offer of proof on this issue, she replied:

Defense Attorney: He stayed away because he ... didn't know what else to do. He was always looking for a way to ... deal with the situation. He was trying to get a lawyer. He was trying to find a way to make some money to get a lawyer, to go in with a lawyer and explain what had happened and ask what to do then.... There is some support for everything that Mr. Lacey says.... And we can bring out what little bit there is through cross-examination. Mr. Lacey also is prepared to take the stand and describe his feelings.

After hearing this offer of proof, Judge Smith told the defense attorney that he would proceed under the assumption that Lacey was willing to take the stand and that Lacey's testimony would corroborate every assertion of fact in the offer of proof. Judge Smith also assured the defense attorney that he understood that his role was to assess the offer of proof in the light most favorable to Lacey, and that the credibility of Lacey's explanation was not at issue. Rather, the issue was whether Lacey's offer of proof was sufficient to establish a prima facie case of necessity-whether the assertions of fact contained in the offer of proof, if believed and viewed in the light most favorable to Lacey, were sufficient to support a finding in Lacey's favor on each element of the necessity defense.

Judge Smith then ruled that, based on our decision in Wells, Lacey's offer of proof was insufficient for two reasons. First, even assuming that Lacey was threatened and that he had good reason to suspect that he would suffer injury or death if he went to Arizona, Lacey was nevertheless obliged to seek the help and protection of prison officials. Judge Smith accepted Lacey's assertion that he believed it would be futile to ask prison officials for help, but the judge ruled that Lacey's subjective belief did not excuse him from pursuing this lawful alternative to escape.

On this point, Judge Smith relied on this Court's decision in Gerlach v. State, 699 P.2d 358 (Alaska App.1985). The defendant in Gerlach was a non-custodial parent who absconded with her child because of her fear that the child was being mistreated or neglected. Gerlach hid with the child for more than a year before she was found and arrested.

After Gerlach was indicted for custodial interference, she raised the defense of necessity. She contended that she had stolen the child rather than seeking court intervention because she feared that she did not have enough money to adequately finance litigation and because she suspected that the judge assigned to the custody case was prejudiced against her. We held that, as a matter of law, Gerlach's subjective belief about the futility of litigation was insufficient to raise a necessity defense. We stated, "[A] person cannot be permitted to ignore [available remedial] procedures and rely on self-help simply because he or she distrusts lawyers, judges, and social workers.

Lacey's case. Judge Smith applied this same rule to He concluded that even if Lacey was threatened as he asserted in his offer of proof, Lacey was still obliged to pursue the remedial procedures available to him, even if he suspected that prison officials might view his claim with skepticism.

Judge Smith also ruled that Lacey's offer of proof was deficient because, even if Lacey's initial decision to escape was arguably justified, Lacey failed to offer a justification for his ensuing thirteen-month absence from custody. Judge Smith noted that Lacey had not contacted prison authorities or any other government official during these thirteen months to explain his problem and seek a resolution of his situation. The judge further noted that Lacey had not contacted any attorney to help him in approaching the authorities. Although Lacey claimed that he always intended to contact an attorney as soon as he had accumulated sufficient money to retain one, Judge Smith pointed out that Lacey did not need a large amount of money to initiate this process, since most attorneys are willing to hold an initial consultation with a prospective client for a nominal fee. In other words, Lacey had not even taken the first step of contacting an attorney to ascertain how much the legal representation would cost.

After outlining these deficiencies in Lacey's offer of proof, Judge Smith clarified that he accepted (for purposes of the offer of proof) Lacey's assertion that he subjectively believed that these approaches would be a waste of time. But based on Wells and Gerlach, Judge Smith concluded that the question did not turn on Lacey's subjective belief concerning the efficacy of these alternatives. Rather, the question turned on whether these alternatives were legally adequate and reasonably available. Accordingly, Judge Smith ruled that Lacey's offer of proof was insufficient to raise the defense of necessity.

On appeal, Lacey contends that his offer of proof was sufficient to raise the defense. In his brief, Lacey claims that he did in fact present some evidence to justify a reasonable conclusion that it would have been futile for Lacey to seek the help or protection of prison officials as an alternative to running away from prison. Lacey asserts that, prior to the death threat he received on the eve of his transfer to Arizona, he had been harassed several times in prison, and prison officials did not always act to protect him.

But Lacey never presented this assertion to Judge Smith. In his brief to this Court, Lacey cites page 29 of the transeript for his assertion that prison officials had been indifferent to the prior harassment. But this page of the transcript reveals that Lacey's attorney told Judge Smith only the following: "For a period of time, [Lacey had] been harassed and baited and had suffered a lot of that kind of behavior from other inmates, but he was coping with that." In other words, the attorney did not tell Judge Smith that Lacey had asked prison officials to intervene or that prison officials had been indifferent to Lacey's safety or well-being. We must evaluate Judge Smith's ruling based on the offer of proof that Lacey made in the superior court.

Lacey also argues that he subjectively believed that "a conspiracy was afoot"-i.e., that prison officials actively wished to see him harmed and that this was their motivation for sending him to Arizona. But, as we held in Gerlach, a defendant's subjective distrust of government officials is not a valid reason for failing to pursue legal avenues of relief Moreover, even if Lacey had had objective reasons for concluding that prison officials were conspiring to harm him, this would not justify his decision to remain a fugitive for thirteen months without contacting the Alaska State Troopers, the Alaska Department of Law, or some other government official.

Finally, Lacey reiterates his claim that he was trying to save enough money to hire a lawyer to help him negotiate with the authorities. But, as Judge Smith noted, Lacey never took even the first step of contacting a lawyer for an initial consultation (or of contacting the Public Defender Agency, which he could have done for free).

We therefore agree with Judge Smith that Lacey failed to present sufficient evidence to raise a jury issue on two elements of his proposed necessity defense. Lacey failed to offer a legitimate reason for failing to pursue available administrative remedies before absconding from prison, and he failed to offer a legitimate justification for his decision to remain a fugitive for thirteen months.

We emphasize that, had Lacey offered "some evidence" on these two elements-4.e., evidence sufficient to support a finding in Lacey's favor on these elements-then it would have been up to the jury to decide the credibility of that evidence. We affirm Judge Smith's ruling because we agree with him that even if we accept as true all the assertions of fact contained in Lacey's offer of proof, those assertions are not sufficient to support a finding in Lacey's favor on these two elements of the necessity defense.

Judge Smith did not clearly err when he concluded that Lacey had failed to prove maitigator (d)(8) by clear and convincing evidence

Lacey's offense, second-degree escape, is a class B felony. Because Lacey was a third felony offender, he was subject to a 6-year presumptive term. At sentencing, Lacey contended that his presumptive term should be mitigated under AS 12.55.155(d)(8)-4.e., that his offense "Iwas! committed ... under some degree of duress, coercion, threat, or compulsion insufficient to constitute a complete defense, but which significantly affected the defendant's conduct".

The litigation of this issue actually began five months earlier, at Lacey's trial, when Lacey proposed his necessity defense. Even though Judge Smith concluded that Lacey had failed to make a sufficient offer of proof to justify a necessity defense, the judge told Lacey that the assertions of fact contained in his offer of proof were conceivably relevant to mitigating Lacey's sentence-but only if Lacey presented evidence to support these assertions, either at trial or at sentencing.

In fact, after Lacey elected to proceed with a bench trial, Judge Smith invited the defense attorney to use the trial as a vehicle for presenting her witnesses concerning any threats made to Lacey and Lacey's perception of how he should deal with those threats. Judge Smith told the defense attorney that this was a matter of administrative convenience: the judge could mentally separate this evidence from the evidence bearing on Lacey's guilt or innocence, and presentation of this evidence at trial would simplify or shorten the sentencing hearing. Despite this invitation, Lacey chose not to testify at trial and his attorney presented no other witnesses on these issues.

Nor did Lacey take the stand or present other evidence at his sentencing hearing. In fact, when Lacey's attorney presented her argument in favor of the proposed mitigating factor of duress, threat, or compulsion, she did not rely on any purported threat to Lacey's life. Instead, she relied on lesser acts of harassment that Lacey had suffered at the hands of fellow inmates:

Defense Attorney: [Elven if the court didn't find that Mr. Lacey's life was threatened, there certainly was evidence that he had been harassed.... [TJhere was an incident where Mr. Lacey was squirted in the face with some cleanser [by an inmate named] MecNaulty. He [also] was antagonized by a man named Sweeney.... [And] Corrections Officer Bowers said that [Lacey] was harassed-that he didn't think it was anything out of the ordinary, but he did confirm that he was harassed. Also, ... Lyon Davids [testified that] she would be on the telephone with him, and she would hear shouting and catealls while she was on the telephone.
So, whether or not that amounted to a defense [to the crime of esceapel, it certainly did show some degree of duress or coercion.

Judge Smith found that Lacey had failed to prove this mitigator. He declared that he was rejecting the proposed mitigator for the same reason that he rejected Lacey's offer of proof regarding necessity: Lacey had done nothing to pursue available administrative remedies to alleviate the problems he faced in prison.

On appeal, Lacey challenges Judge Smith's rejection of this proposed mitigator. But Lacey's primary argument is that he received a death threat, that this threat motivated his escape, and that therefore his offense was mitigated under AS 12.55.155(d)(8). As explained above, Lacey presented no evidence that he had been subjected to death threats, nor did his attorney rely on this theory when she argued the proposed miti-gator at the sentencing hearing.

There was evidence that Lacey was subjected to lesser acts of harassment by his fellow inmates, but the question is whether this lesser harassment mitigated Lacey's culpability for absconding from prison under AS 12.55.155(d)(8). As we noted in Bynum v. State, mitigator (d)(3) requires proof of duress, threat, or compulsion "sufficiently extraordinary in nature that it approaches being a defense to the crime". We conclude that Judge Smith did not clearly err when he found that Lacey's evidence did not establish mitigator (d)(8) by clear and convincing evidence.

Conclusion

The judgement of the superior court is AFFIRMED.

COATS, C.J., dissented.

COATS, Chief Judge,

dissenting.

Lacey escaped from prison. He was apprehended in Alaska approximately a year after his escape. Lacey defended on the ground that it was necessary for him to escape from prison because he was about to be transferred to an Arizona prison and had received credible threats that he would be killed as soon as he entered that prison.

A defendant who argues the defense of necessity to justify an escape from prison understandably bears a heavy burden to justify his actions. He must establish that he had no reasonable alternative but to escape. Part of his burden is to establish that he was unable to obtain adequate protection within the institution. Furthermore, a defendant "must present some evidence justifying his continued absence from custody as well as his initial departure."

In my view, Lacey presented some evidence that could justify a jury's finding that Lacey established his necessity defense. In his offer of proof, Lacey represented that the Department of Corrections was going to transfer him from a facility in Alaska to a facility in Arizona. Lacey administratively fought the transfer but lost. Then, someone within the prison told him that he would be killed the moment he entered the Arizona prison. (Lacey's attorney represented that she currently was looking for the person who had threatened Lacey.) The day following the threat, Lacey was told that he was going to be transferred. He thought that the person who threatened him had inside information because he had threatened him the day before Lacey was going to be transferred. Lacey was aware that another person had been beaten into a coma at the Arizona facility. He was sure that the threat was ceredi-ble, and he was afraid for his life. He explained that he felt that it would be futile to seek help from Department of Corrections officials because he was sure that they would assume that he was merely trying to avoid the transfer. He concluded that his only possible course of action was to escape.

Lacey explained his prolonged absence from the institution. He explained that he was sure that if he turned himself in, he would be transferred to Arizona and killed. He explained that he believed that his only chanee was to hire a lawyer before he turned himself in. He claimed that his intention was always to turn himself in but only after he had obtained a lawyer who could protect his rights. He claimed that, at the time he was arrested, he had saved $600 towards the expense of hiring a lawyer. It was always his intent to turn himself in when he had a chance to deal with the threat against his life.

In my view, Lacey's offer of proof meets all of the Wells criteria. He had an explanation for each prong of the defense. Of course, Lacey's defense to his escape charge was weak. But, in my view, he had the right to present this defense to a jury. Lacey was entitled to a jury trial. I see no reason to deprive him of his right to a jury trial merely because he had a weak defense. I would therefore reverse Lacey's conviction and remand to allow him to present his case to a jury.

      . AS 11.56.310(a)(1)(A).

      . Wells v. State, 687 P.2d 346, 348 (Alaska App.1984).

      . Wells, 687 P.2d at 349.

      . See Wayne R. LaFave and Austin W. Scott, Jr., Substantive Criminal Law (1986), § 5.4, Vol. 1, p. 629.

      . See Cleveland v. Anchorage, 631 P.2d 1073, 1078 (Alaska 1981).

      . See Wells, 687 P.2d at 350.

      . Id.

      . See id.

      . Id. at 351.

      . See id., 687 P.2d at 347 n. 2. But compare the seemingly contradictory statements in footnotes 3 and 4.

      . See id. at 351.

      . Id.

      . See AS 11.81.900(b)(2)(A) (governing affirmative defenses, ice., defenses on which the defendant bears the burden of proof) and AS 11.81.900(b)(18)(4) (governing normal defenses).

      . See Ha v. State, 892 P.2d 184, 190 (Alaska App.1995) (the evidence must be sufficient to establish each element of the proposed defense); Paul v. State, 655 P.2d 772, 775 (Alaska App. 1982) (the evidence, viewed in the light most favorable to the defendant, must be sufficient to warrant a reasonable juror's finding in the defendant's favor on the proposed defense).

      . Id. at 359.

      . Id. at 359-360.

      . Id. at 363.

      . AS 11.56.310(b).

      . AS 12.55.125(d)(2).

      . 708 P.2d 1293, 1294 (Alaska App.1985).

      . See Lepley v. State, 807 P.2d 1095, 1099 n. 1 (Alaska App.1991) (a sentencing judge's findings as to the existence of aggravating and mitigating factors are reviewed under the "clearly erroneous" standard).

      . Wells v. State, 687 P.2d 346, 350-51 (Alaska App.1984).