text:
    ALASKA WILDLIFE ALLIANCE, Eastern Kenai Peninsula Environmental Action Association, Friends of McNeil River, and Kachemak Bay Conservation Society, Appellants, v. STATE of Alaska, and Tony Knowles, Governor of Alaska, Appellees.
    No. S-10520.
    Supreme Court of Alaska.
    July 25, 2003.

      Thomas E. Meacham, Anchorage, for Appellants.
    Sabrina EL. Fernandez and Kevin M. Saxby, Assistant Attorneys General, Anchorage, and Bruee M. Botelho, Attorney General, Juneau, for Appellees.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices. i
   OPINION

EASTAUGH, Justice.

I. INTRODUCTION

The day after the superior court dismissed a complaint filed by public interest litigants, a second, substantially identical, complaint was filed. The superior court dismissed the second complaint on res judicata grounds, and awarded attorney's fees against the public interest litigants because it found the complaint was frivolous and brought in bad faith. We affirm the res judicata dismissal of the second complaint because we hold that the dismissal of the first complaint under Alaska Civil Rule 12(b)(6) was a decision on the merits. But we reverse the attorney's fees award because it was reasonably debatable whether res judicata barred the second complaint; it was therefore error to conclude that the second complaint was frivolous and filed in bad faith.

II. FACTS AND PROCEEDINGS

The Alaska Wildlife Alliance and several other environmental conservation groups (collectively, the alliance) first sued the Alaska Board of Game, the Commissioner of Fish and Game, and the Governor of Alaska in November 2000 to remedy the allegedly unlawful composition of the Board of Game's membership.

The Board of Game oversees the conservation and development of Alaska's wild game resources. Its membership is governed by AS 16.05.221(b). The governor appoints the seven board members subject to legislative confirmation. The only statutory qualifications for appointment to the board are an "interest in public affairs, good judgment, knowledge, and ability in the field of action of the board." The statute also encourages the governor to consider "diversity of interest and points of view."

In the November 2000 lawsuit (AWA I), the alliance claimed that the composition of the board violated the Alaska Constitution and AS 16.05.221(b) because all seven board members were hunters, trappers, hunting guides, or persons representing those interests.

The AWA I complaint asserted five causes of action. The first count alleged that the composition of the board violated what the alliance called the "requirement" in AS 16.05.221(b) of a diversity of interest and points of view. The second count alleged that the composition of the board violated the common use section of the Alaska Constitution. The third count asserted that the composition of the board violated the state's "trust duty and ... fiduciary obligation" under the common use section. The fourth count alleged that the failure to include members who were not hunters, hunting guides, or trappers violated the uniform application section of the Alaska Constitution. The fifth count asserted that the common use section required membership by non-hunters proportionate to Alaska's non-hunter population, and that because no more than twenty-five percent of Alaskans were licensed hunters, hunting guides, or trappers, those groups combined should have no more than two of the seven seats on the board.

The alliance sought a judgment declaring that the board's composition violated AS 16.05.221(b) and the common use and uniform application sections of the Alaska Constitution. It also asked the superior court to transfer the board's regulatory authority over wildlife to the Alaska Department of Fish and Game until the board's membership met statutory and constitutional standards. Finally, the alliance asked the court to order that the board's membership be reconstituted via new gubernatorial appointments and legislative confirmations. '

The state moved to dismiss the complaint under Alaska Civil Rule 12(b)(6) for failure to state a claim upon which relief may be granted. The state argued: that the complaint presented a non-justiciable political question; that the complaint did not implicate the equal access and uniform application sections of the Alaska Constitution; that the complaint should be dismissed under principles of statutory interpretation; and that the issues raised by the alliance were based on false premises. On May 7, 2001 Superior Court Judge Peter A. Michalski granted the state's motion and dismissed the AWA I complaint under Rule 12(b)(6).

The next day counsel for the alliance filed a new complaint: Edgar P. Bailey v. State of Alaska and Tony Knowles, Governor (AWA II). Although the complaint was filed on May 8, 2001, it was not served on the state until July 9, 2001. Between those dates, the complaint was amended to substitute for Bailey the same plaintiffs who had brought AWA I. The amended complaint in AWA II alleged that the membership of the board violated AS 16.05.221(b), the common use and uniform application sections of the Alaska Constitution, and the state's trust duty and fiduciary obligation under the Alaska Constitution. The alliance sought declaratory relief but did not ask the superior court to reassign regulatory authority or to order the board reconstituted.

Meanwhile, on June 1, 2001, after AWA II was filed but before it was served, the superi- or court issued a written final judgment dismissing AWA I. Neither the oral ruling nor the written order included findings of fact, conclusions of law, or any other explanation of the court's reasoning.

On June 26, 2001 the superior court in AWA I denied the state's motion for attorney's fees. The court ruled that the plaintiffs were public interest litigants and that the suit was not frivolous. The court also stated that the procedure for appointing and confirming board members "is a political process."

The state then moved to dismiss AWA IL under Rule 12(b)(6). The state advanced the same arguments it had made in its motion to dismiss the complaint in AWA I, but added that the AWA II complaint should also be dismissed on res judicata grounds.

Superior Court Judge John Reese granted the state's motion to dismiss AWA ZJ on res judicata grounds because he held that the AWA I dismissal was on the merits. The court then awarded the state $4,000 in attorney's fees against the plaintiffs because it found that the complaint in AWA IF had been filed in bad faith and was frivolous.

The alliance appeals both the dismissal of AWA II and the award of attorney's fees in AWA IL

III. DISCUSSION

A. - Standard of Review

Whether res judicata prevents a plaintiff from bringing an action presents a question of law that we review de novo.

Complaints are to be liberally construed so that motions to dismiss are rarely granted. To survive a Rule 12(b)(6) motion, a complaint only needs to show "a set of facts consistent with and appropriate to some enforceable cause of action."

We review an award of attorney's fees for abuse of discretion. An abuse of discretion exists if the award was "arbitrary, capricious, manifestly unreasonable, or [if it] stemmed from an improper motive."

B. Res Judicata Bars the Alliance's Complaint.

Res judicata bars a subsequent action when a judgment in a prior action was "(1) a final judgment on the merits, (2) from a court of competent jurisdiction, and (8) in a dispute between the same parties (or their privies) about the same cause of action."

The alliance argues that under Alaska Civil Rules 41(b) and 52(a), res judicata cannot apply because the superior court in AWA I did not issue a "reasoned decision." The alliance also claims that the dismissal of AWA I was based on jurisdictional grounds rather than on the merits. Finally, it claims that AWA I and AWA II involved different defendants and claims for relief.

The state argues that the superior court dismissed AWA I on the merits under Rule 41(b) and that res judicata therefore bars the AWA II complaint. The state also argues that the two complaints involved the same parties and causes of action.

1. The absence of findings of fact and conclusions of law does not prevent the AWA I dismissal from having res judicata effect.

The superior court in AWA I did not issue findings of fact or conclusions of law when it dismissed the complaint. The alliance argues that res judicata should not bar AWA IF because there was no "reasoned decision" in AWA I. The alliance uses the "reasoned decision" shorthand to refer to an opinion containing findings of fact and conclusions of law. For simplicity we accept the alliance's terminology in our discussion, but in doing so, we do not intend to suggest that Judge Michalski's decision in AWA I was not "reasoned," despite its lack of findings of fact or conclusions of law.

The alliance bases its argument on its reading of the interplay between Alaska Civil Rules 52(a) and 41(b). Rule 52(a) states in part:

If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein. Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion exeept as provided in Rule 41(b).

Rule 41(b) states in part:

If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal ... other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party ... operates as an adjudication upon the merits.

The alliance argues that for a Rule 12 dismissal to be a judgment on the merits under Rule 41(b), the court must issue findings of fact and conclusions of law under Rule 52(2).

We do not read Rules 41(b) and 52(a) to require a court to issue findings of fact or conclusions of law for a dismissal decision to be on the merits Rule 52(a) states that findings of fact and conclusions of law are not necessary for decisions made under Rule 12, except as provided in Rule 41(b). Rule 41(b) states that if a court renders a judgment on the merits, it shall make findings as required by Rule 52(@). But Rule 52(a) does not require findings of fact for Rule 12 dismissals. Furthermore, Rule 41(b) states that unless the court otherwise specifies or the decision is based on a lack of jurisdiction, a dismissal operates as an adjudication on the merits. Here, the court did not "otherwise specify," and, for reasons we will discuss, the dismissal was not based on a lack of jurisdiction. The dismissal of AWA I was an adjudication on the merits, notwithstanding the absence of findings of fact and conclusions of law. The absence of findings of fact and conclusions of law does not prevent the application of res judicata to the AWA I dismissal.

The alliance invokes Usibelli Coal Mine, Inc. v. State, Department of Natural Resources in support of its argument that res judicata cannot apply in the absence of a "reasoned decision." We held in Usibell that res judicata did not apply if a prior decision did not address or consider one of the plaintiff's arguments. We relied on the REestatEmEnNt (SEcoND) or JupeMENTS and identified several indicia that a prior judgment was final: "that the parties were fully heard, that the court supported its decision with a reasoned opinion, [and] that the decision was subject to appeal or was in fact reviewed on appeal." The alliance emphasizes the "reasoned opinion" factor. But Usibelh did not say that all the factors had to be present for res judicata to apply. Moreover, Usibelli listed those factors to determine whether a decision is final, not whether it was on the merits.

The alliance also looks to federal case law. The federal courts typically require trial courts to issue reasoned decisions explaining their rulings. The alliance points to Couveau v. American Airlines, Inc., in which the plaintiff appealed a grant of summary judgment for the defendant. Res judicata was not an issue. The defendant moved for summary judgment on several grounds, and the trial court granted summary judgment without explaining its reasoning or indicating which of the defendant's arguments it found persuasive. The United States Court of Appeals for the Ninth Cireuit explained that "when multiple grounds are presented by the movant and the reasons for the district court's decision are not otherwise clear from the record, [we] may vacate a summary judgment and remand for a statement of reasons." But the court in Couveau did not say that a reasoned decision must be issued in order for a decision to be treated as being on the merits. Moreover, a review of the entire record here permits us to ascertain the basis for the superior court's dismissal in AWA I.

In most cases involving dismissal or summary judgment, the grounds for the superior court's ruling can be discerned from the parties' motion papers. As we noted above, "findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56." We agree with the implied reasoning of the Ninth Circuit in Couveam that a trial court addressing multiple theories for dismissal or summary judgment should always identify the grounds for its ruling with sufficient clarity to permit meaningful appellate review. But here, even though the AWA I dismissal order did not explain the reason for dismissal, we can infer the court's reasons for the AWA I dismissal from its subsequent opinion denying the state's attorney's fees motion. We do not want to discourage superior courts from explaining their reasons for granting relief under Rule 12(b)(6). But in this case, Judge Michalski's attorney's fees order in AWA I permits us, in considering whether res judi-cata barred AWA II, to determine why the superior court dismissed AWA I.

2. A ruling on justiciability is not a ruling on jurisdiction.

Alaska Civil Rule 41(b) states that "[uJnless the court in its order for dismissal otherwise specifies, a dismissal ... other than a dismissal for lack of jurisdiction ... operates as an adjudication on the merits." The court's order in AWA I did not specify that it was not a dismissal on the merits, The alliance argues that the court dismissed AWA I for raising a political question, and that this basis for dismissal is jurisdictional.

The alliance correctly notes that we have taken a broad view of the meaning of "jurisdiction" in context of Rule 41(b). In Blake v. Gilbert we interpreted jurisdiction "to include preconditions and other initial bars to suit, where the defendant has not yet incurred any significant prejudice."

A claim implicates the political question doctrine when there is "(1) a textually demonstrable commitment of the issue to a coordinate political department; (2) the impossibility of a court's undertaking an independent resolution of the case without expressing lack of respect due coordinate branches of government; and (8) the need for adherence to a political decision already made." We also consider whether there are any "judicially discoverable and manageable standards for resolving the issue."

The alliance argues that the political question doctrine is a jurisdictional matter because "(ilt cares not about the substantive merits of a lawsuit." But in Baker v. Carr the United States Supreme Court classified the political question doctrine as an issue of justiciability. The Court then distinguished jurisdiction from justiciability:

In the instance of nonjusticiability, consideration of the cause is not wholly and immediately foreclosed; _ rather, the Court's inquiry necessarily proceeds to the point of deciding whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded. In the instance of lack of jurisdiction the cause either does not "arise under" the Federal Constitution, laws or treaties (or fall within one of the other enumerated categories of Art. III, § 2), or is not a "case or controversy" within the meaning of that section; or the cause is not one described by any jurisdictional statute.[]

We agree that the political question doctrine is more than jurisdictional and is instead a substantive basis for a dismissal. Although we give a broad meaning to "jurisdiction" for purposes of Rule 41(b) involuntary dismissals, that view is designed to allow plaintiffs to remedy defects that prevent a court from reaching the merits of a complaint. But when the merits raise a political question, the defect is not curable. The superior court's dismissal of AWA I was not a dismissal for lack of jurisdiction. Under Rule 41(b), the dismissal was an adjudication on the merits.

8. AWA I and AWA II involve the same parties and claims.

Res judicata applies when two cases involve the same parties or their privies and the same causes of action. The alliance argues that the differences between the AWA I and AWA II defendants and claims for relief were sufficient to avoid res judicata.

The alliance first asserts that the parties are different because it sued the Board of Game and the Commissioner of Fish and Game in AWA Z but it did not sue those defendants in AWA II. But in AWA II the alliance simply replaced lesser state entities with the State of Alaska. And in both cases the alliance sued the Governor of Alaska. Res judicata is not defeated by substituting one state entity for another when the claim is based on the same conduct, and when the same defense of non-justiciability applies regardless of which specific state entity is named as a defendant.

The alliance next argues that the causes of action in the two cases differed considerably because the alliance dropped its request that the court transfer the board's regulatory authority to the Commissioner of Fish and Game until the defendants re-constituted the board's membership. But the court in AWA I dismissed all of the alliance's causes of action and claims for relief, not merely the request for injunctive relief. The remaining claims in AWA II are the same as in AWA I. Deleting one request for relief did not alter the underlying causes of action.

C. It Was Error To Award Attorney's Fees Against the Alliance.

In AWA II the superior court awarded $4,000 as partial attorney's fees under Alaska Civil Rule 82 against the alliance plaintiffs because it determined that the see-ond complaint was frivolous and brought in bad faith. The alliance argues that it was an abuse of discretion to award fees because the complaint was neither frivolous nor brought in bad faith. We agree.

We have held that under Rule 82, "it is an abuse of discretion to award attorney's fees against a losing party who has in good faith raised a question of genuine public interest before the courts." But fees may be awarded against a public interest plaintiff if the claim is frivolous or brought in bad faith.

The order awarding fees identifies three reasons for deciding that the complaint in AWA II was frivolous and brought in bad faith. First, it states that the action was previously dismissed with prejudice and that the alliance was barred from refiling the complaint under res judicata. Second, it finds that the complaint "was subject to a number of obvious affirmative defenses which [the alliance] failed to address or present any good faith argument for overeom-ing." Finally, it states that the alliance "made no effort to explain or justify [its] attempt to collaterally attack the ruling of the prior court on this matter and [it] presented no good faith authority or argument for overcoming the application of res judicata in this matter."

We are not persuaded that the filing of AWA II demonstrates bad faith. It was reasonably debatable whether the first complaint had been dismissed on the merits. Although we held above that the alliance's second complaint was barred by res judicata, this result was not so self-evident that the filing of AWA II indicates bad faith.

We are also not persuaded that the alliance failed to address several obvious affirmative defenses in its response to the motion to dismiss AWA IL. The state argues that the alliance "conceded or did not really address" five affirmative defenses that the state raised in its motion to dismiss AWA ZZ, and that therefore the alliance's claims were frivolous and brought in bad faith. But the alliance's opposition to the motion to dismiss did respond, at least in some way, to each of the affirmative defense arguments. Its responses may have been less than exhaustive, but they were sufficient to preclude a finding of bad faith.

Finally, we are unpersuaded by the order's statement that the alliance "made no effort to explain or justify [its] attempt to collaterally attack the ruling of the prior court on this matter and [it] presented no good faith authority or argument for overcoming the application of res judicata in this matter." The question whether res judicata attached to the dismissal in AWA I was reasonably debatable, even though we have ruled for the state on that issue. Moreover, the alliance was not attempting to collaterally attack the dismissal of AWA I. Instead, it asserted -in good faith but ultimately unpersuasively-that the parties and claims in AWA II were different from AWA I, and that AWA I was not dismissed on the merits.

It is true that the AWA IJ complaint was filed the day after the AWA I complaint was dismissed, and that the alliance did not appeal the AWA I dismissal or ask the superior court to explain its reasoning. But the course the alliance chose to follow does not demonstrate bad faith or that the claim was frivolous. Just because a complaint is found to raise a political question does not necessarily mean it was frivolous. That a complaint is deemed barred by res judicata does not necessarily mean that it was filed in bad faith,. We hold that it was error to award the state attorney's fees against these public interest litigants. This result moots the alliance's claim that it was error to deny its motion for reconsideration of the attorney's fees award.

IV. CONCLUSION

We therefore AFFIRM the order of the superior court granting the state's motion to dismiss on res judicata grounds, but VACATE the order awarding attorney's fees and REMAND for correction of the judgment.

      . Alaska Wildlife Alliance v. Alaska Bd. of Game, No. 3AN-00-12369 CI (Alaska Super., June 1, 2001).

      . AS 16.05.221(b) provides in part:
      For purposes of the conservation and development of the game resources of the state, there is created a Board of Game composed of seven members appointed by the governor, subject to confirmation by a majority of the members of the legislature in joint session. The governor shall appoint each member on the basis of interest in public affairs, good judgment, knowledge, and ability in the field of action of the board, and with a view to providing diversity of interest and points of view in the membership. The appointed members shall be residents of the state and shall be appointed without regard to political affiliation or geographical location of residence.

      . Id.

      . Id.

      . "Common Use. Wherever occurring in their natural state, fish, wildlife, and waters are reserved to the people for common use." Alaska Const. art. VIII, § 3.

      . "Uniform Application. Laws and regulations governing the use or disposal of natural resources shall apply equally to all persons similarly situated with reference to the subject matter and purpose to be served by the law or regulation." Alaska Const. art. VIII § 17.

      . Alaska Civil Rule 12(b)(6) provides: "[The following defenses may at the option of the pleader be made by motion: ... (6) failure to state a claim upon which relief can be granted."

      . Dixon v. Pouncy, 979 P.2d 520, 523 (Alaska 1999); Renwick v. State, Bd. of Marine Pilots, 971 P.2d 631, 633 (Alaska 1999).

      . Odom v. Fairbanks Mem'l Hosp., 999 P.2d 123, 128 (Alaska 2000).

      . Id.

      . Tenala, Ltd. v. Fowler, 993 P.2d 447, 449 (Alaska 1999).

      . Id.

      . Plumber v. Univ. of Alaska Anchorage, 936 P.2d 163, 166 (Alaska 1997).

      . 921 P.2d 1134, 1142 (Alaska 1996).

      . Id.

      . Id. (quoting Restatement (Seconp) or JunemeNnts § 13 cmt. g (1982)).

      . 218 F.3d 1078 (9th Cir.2000).

      . Id. at 1081.

      . Id.

      . Alaska R. Civ. P. 52(a); see also Christensen v. NCH Corp.; 956 P.2d 468, 477 (Alaska 1998).

      . Alaska R. Civ. P. 41(b).

      . 702 P.2d 631, 636-38 (Alaska 1985).

      . Malone v. Meekins, 650 P.2d 351, 357 (Alaska 1982).

      . State, Dep't of Natural Res. v. Tongass Conservation Soc'y, 931 P.2d 1016, 1019 (Alaska 1997) (quoting Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)).

      . 369 U.S. 186, 198, 208-37, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).

      . Id. at 198, 82 S.Ct. 691.

      . See, e.g., Blake v. Gilbert, 702 P.2d 631, 637-38 (Alaska 1985) (ruling dismissal of corporation's complaint for lack of capacity to sue based on failure to pay taxes and file annual report was jurisdictional and not bar to subsequent suit by shareholder in privity with corporation bringing same cause of action).

      . Id. at 634-35.

      . Eyak Traditional Elders Council v. Sherstone, Inc., 904 P.2d 420, 422 (Alaska 1995).

      . Cabana v. Kenai Peninsula Borough, 21 P.3d 833, 837 (Alaska 2001) ("frivolous claims preclude public interest litigant status"); Municipality of Anchorage v. Citizens for Representative Governance, 880 P.2d 1058, 1062 (Alaska 1994) ("'Public interest litigants must file and pursue their suit in good faith.").


source: Caselaw Access Project

author: EASTAUGH, Justice.

license: Public Domain

text:
    Nancy KIOKUN and Cynthia Olrun, Petitioners, v. STATE of Alaska, DEPARTMENT OF PUBLIC SAFETY, Respondent. State of Alaska, Department of Public Safety, Appellant/Cross-Appellee, v. Nancy Kiokun and Cynthia Olrun, Appellees/Cross-Appellants.
    Nos. S-9044, S-9558, S-9563.
    Supreme Court of Alaska.
    July 25, 2003.

      Venable Vermont, Jr. and Gary M. Guari-no, Assistant Attorneys General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for State of Alaska.

      Kari L. Bazzy Garber, Garber & Bazzy, P.C., and Don C. Bauermeister, Burke & Bauermeister, P.L.L.C., Anchorage, for Nancy Kiokun and Cynthia Olrun.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

EASTAUGH, Justice.

1. INTRODUCTION

Tort plaintiffs claimed the State of Alaska was liable for the deaths of three people who perished in bitter mid-January cold after they left their car in deep snow on a remote, unmaintained road. The plaintiffs claimed the Alaska State Troopers negligently failed to launch a search and rescue after hunters told the troopers late the afternoon of January 15, 1996 they had found an unoccupied car, a "HELP" sign and arrow stamped in the snow, and footprints heading east. The temperature was then forty-five degrees below zero Fahrenheit. About fifty-eight hours later Leah and Palmer Olrun and their young grandson were found dead eight miles from the car. Assuming the troopers owed a tort duty, we hold that the decision whether to initiate a search and rescue is protected by discretionary function immunity. We therefore reverse the judgment entered for the plaintiffs, and remand for entry of judgment for the state.

II FACTS AND PROCEEDINGS

Between 5:00 and 5:30 p.m. on January 15, 1996, hunters Marcel Kania and Vernon Rice went to the Cantwell home-office of Alaska State Trooper Ellis. Rice reported to Trooper Ellis's wife by intercom that the hunters had seen an abandoned red Subaru in deep snow on an unmaintained road at Mile 50 of the Denali Highway. They found the car stopped in the middle of the road in about eighteen inches of snow. They saw the word "HELP" and an arrow stamped in the snow, and footprints heading east, toward Paxson. © Rice reported that people were in trouble and needed help. The hunters did not find the car's occupants or report its license plate number or any other identifying features. The car was about fifty miles from Paxson and about eighty miles from Cant-well. It had taken the hunters about two hours and fifteen minutes to reach Cantwell. Trooper Ellis immediately forwarded the information to the Fairbanks State Troopers dispatcher, who relayed it to the Glennallen dispatcher.

At about 6:00 p.m. that night the Glennal-len dispatcher contacted Trooper Ellis, who provided all the information he had about the vehicle. The Glennallen dispatcher then contacted Trooper Pierce at the Paxson Lodge and asked him to check for more information around the Lodge. At 6:25 p.m. the Glennal-len dispatcher contacted Trooper Heck to advise him of the hunters' report. Trooper Heck asked Trooper Stevenson to travel to the Subaru's location that night via snowma-chine. Although Trooper Stevenson initially agreed, both troopers decided that Trooper Stevenson should not travel alone and that it would be best to wait until morning. Trooper Heck returned to the Hennallen post and contacted Trooper Ellis in Cantwell for more information. Trooper Heck also left a message for Sergeant Maynard at his home. Trooper Heck contacted one other trooper before ending his shift. He did not, however, inform the Reseue Coordination Center (RCC) that he would not be coordinating a response that night. Sergeant Maynard advised the Glennallen dispatcher at 10:00 p.m. to have Trooper Pierce call him the next morning.

At 11:80 pm. January 15 Trooper Siegfried of the Anchorage post was contacted by the Anchorage dispatcher, who reported that Leah Olrun, her husband, and her grandchild were missing, along with their maroon Subaru. Trooper Siegfried searched the Seward Highway for the Olruns between midnight and 2:20 a.m.

At 9:00 a.m. January 16 Sergeant Maynard contacted" Captain Clontz and they decided a search of the Denali Highway using the Alaska State Trooper helicopter would be feasible when the temperature rose above thirty-five degrees below zero. The temperature was then minus fifty degrees Fahrenheit. At 2:88 p.m. the Anchorage Police Department dispatcher sent an all-points message regarding the Olruns and the vehicle.

At 11:00 a.m. on January 17 a relative of the Olruns reported to Trooper Gibson of the Anchorage post that the Olruns had left Anchorage on Tuesday, January 11, heading toward the Kenai Peninsula. After contacting dispatch and learning about Trooper Siegfried's search earlier that morning, Trooper (Gibson informed the relative of the search. At 1:80 p.m. Sergeant Stauber requested a Civil Air Patrol search for the Olruns. After collecting more information, Sergeant Stau-ber requested permission to authorize a Civil Air Patrol search of the highway between Anchorage and Homer.

At 7:42 p.m. on January 17 Trooper Pierce reported to Sergeant Maynard the connection he made between the "Be On The Lookout" report, the report of the vehicle on the Denali Highway, and the report of the missing Olruns. Sergeant Maynard authorized an immediate search of the Glennallen area. The Olrun vehicle was found at 1:00 a.m. on Thursday, January 18, 1996. Two-and-a-half hours later the Olruns' frozen bodies were found almost eight miles east of the vehicle.

Naney Kiokun (Leah Olrun's mother) and Cynthia Olrun (daughter of Leah and Palmer Olrun and mother of the decedent child) filed suit against the State of Alaska and the State Department of Public Safety in December 1997. We refer to the plaintiffs collectively as "Kiokun," and to the defendants interchangeably as the "state" or the "department." Kiokun moved for summary judgment on the issue of the department's duty to rescue. Relying on Lee v. State, the superior court ruled as a matter of law that the state had a duty to go to the Olruns' aid and that it had breached that duty. The court ruled that the department was not entitled to discretionary function immunity because the decision to conduct search and rescue operations was operational. The case went to trial and the jury found that the state's negligence was a legal cause of the three deaths and that the department was fifty-one percent responsible for the Olruns' deaths.

This appeal follows.

III DISCUSSION

A. - Standard of Review

Whether a governmental act is entitled to discretionary function immunity is a matter of law. We review questions of law de novo. We review the interpretation of statutes using our independent judgment.

B. Duty

Kiokun filed a motion to establish the state's duty to the Olruns and a motion for partial summary judgment. The superior court entered partial summary judgment against the state, ruling that "[the State of Alaska through the Alaska State Troopers owed a duty to the Olrun family to go to their aid.... The State of Alaska breached its duty as a matter of law." The superior court relied on Lee v. State to support its conclusion.

Normally we do not reach the question of AS 09.50.250 discretionary function immunity unless we have first determined that the state owed an actionable duty and that it is at least disputed whether the state breached that duty. The state argues that no actionable duty arose under statute, the department's operating manual, our case law, or public policy. argues that the state owed a duty that arose out of statute, assumption of duty, common law, and the department's operating manual.

Notwithstanding our usual practice when we consider issues concerning tort claims against the state and discretionary function immunity, we proceed in this case directly to the immunity analysis because it better illustrates the public policy issues that would also bear on a duty analysis. For our purposes, therefore, we assume that the department owed a duty, arising at some undetermined time, to commence a meaningful search for the Olruns and possibly a reseue attempt.

C. - Immunity

The state moved for summary judgment, arguing that its failure to launch an immediate search and rescue was a decision protected by discretionary function immunity. Kiokun opposed the motion and asserted that the Department of Public Safety Operating Procedures Manual, testimony from a former state trooper, and Alaska statutes and case law all dictated that the decision not to launch an immediate search and rescue was operational and therefore not immune from a tort claim. Although we explain the doctrine in more detail below, it is pertinent to note now that we distinguish between planning activities and operational activities to determine whether the state's actions are immune from a tort claim. Operational activities are not immune.

The superior court granted Kiokun summary judgment on the duty issue, stating orally, "[A] duty to rescue does exist. I rely on Lee and its progeny principally in recognizing that duty.... I think there is a duty imposed on police officers by law to rescue people in need." The superior court did not undertake a discretionary function analysis. Instead, it stated, "Itlhis behavior ... is operational activity." The court also granted Kiokun summary judgment on the issue of breach of duty. The court reserved the issue of causation for the trial jury.

The state advances three reasons to support its appellate argument that the decision whether to initiate a search and rescue is protected from tort claims by discretionary function immunity. First, it contends that AS 18.60.120 governs search and rescue initiation and is a permissive statute. Because the statute uses the word "may," the state concludes that the legislature intended the department to use its discretion when deciding whether to launch a search and rescue operation. The state relies on our decision in State, Department of Transportation & Public Facilities v. Sanders, in which we looked to the language of the traffic regulations to determine whether airport officials had a duty to enforce them. We concluded that the use of the permissive "may" meant that the airport officials had discretion whether to enforce the regulations. The state claims that here, as in Sanders, we should hold that the permissive language of the statute left the decision whether to launch a search and reseue attempt to the Department of Public Safety's discretion.

Second, the state asserts that the decision whether to initiate a search and rescue is inherently based on resource allocation and is therefore protected as a discretionary function. It relies on cases in which we held that state decisions that involved evaluation of road conditions to determine whether to issue tickets to motorists driving at unreasonable speeds and whether to close the Parks Highway due to ice are protected against tort claims. In those cases we held that the state's decisions were protected from tort claims under the doctrine of discretionary function immunity because the decisions involved evaluation of safety concerns. The department argues that whether to initiate a search and rescue depends on weather conditions, available manpower, and "allocation of scarce emergency rescue resources." It analogizes this case to Johnson v. United States, Department of Interior. The United States Court of Appeals for the Tenth Circuit there held that the activities of park rangers in gathering information and deciding whether to initiate a search and rescue balanced "safety objectives" against practical resource considerations, were "grounded in social and economic policy," and were therefore within the federal discretionary function exception and protected from tort claims.

Finally, the department concedes that it could have been subject to a tort claim had it initiated a negligent search and rescue, but argues that because it did not undertake to reseue the Olruns, it did not assume a duty that would render discretionary function immunity inapplicable. In State v. Abbott we held that the state undertook a duty when its winter maintenance of the Seward Highway resulted in more dangerous conditions. Because the state had undertaken the maintenance of the highway, we held that it had undertaken an operational duty and thereby waived its immunity. - Similarly, in Adams v. State, we held that the decision whether to inspect hotels was a discretionary function but that onee the state had inspected a particular hotel it had waived immunity for incidents resulting from the negligent inspection of that hotel. The department argues here that because the troopers did not decide to initiate a search and rescue, they did not undertake an operational duty to rescue the Olruns. (The troopers ultimately did launch a search in the vicinity of the Subaru based on the hunters' report, but the decision to do so was made after the Olruns must have already succumbed to the bitter cold, probably sometime before daylight on January 16.)

Kiokun responds that the department's position is antiquated and inappropriately impersonal. She contends that the legislative history of AS 18.60.120 does not indicate that the legislature intended the statute to immunize the state from lawsuits related to search and rescue decisions. She contends that the decision was operational, because the troopers had a mandatory duty to commence a prompt search. Finally, she asserts that the troopers assumed a duty to the Olruns after they promised to follow up on the hunters' report.

"[Wle identify 'discretionary' acts or functions by examining whether the act or function can be described as 'planning' or 'operational.' " We distinguish between decisions that involve policy formation and those that involve policy execution or implementation. This ensures that courts do not step into the policy roles committed to other branches of government. The United States Supreme Court has held that "if the policies and programs formulated by the [agency] allow room for implementing officials to make independent policy judgments, the discretionary function exception protects the acts taken by those officials in the exercise of this discretion."

In holding that the state owed a duty to go to the Olruns' aid, the superior court relied on Lee v. State, in which we held that a state trooper had a duty to aid a girl whose arm was in the mouth of a caged lioness at an amusement park. Kiokun contends that the duty imposed in Lee is inconsistent with granting discretionary function immunity. It might be argued that because the hunters' report revealed that persons were potentially at high risk of injury or death, the same duty to rescue imposed on the trooper in Lee also compelled the troopers to respond here.

But the state did not argue in Lee that it was protected by discretionary function immunity. (The question there was whether the Alaska Good Samaritan Statute applied. We held that it did not, because the trooper had a duty to respond.) The trooper had actually commenced a reseue effort in Lee but allegedly performed it negligently. Moreover, a duty to conduct a search or rescue does not inevitably carry with it a duty to conduct an immediate search and rescue. The difference is illustrated by the differences in the circumstances facing the troopers in each case. In Lee, the child's companion ran from the amusement park to a nearby trooper office for help. The lioness had already grabbed the child's arm in its teeth, and the companion had been unable to secure her release by striking the lioness with a pipe. The trooper was able to respond immediately. No issue was raised about any physical or practical reasons for not immediately responding, and there was no claim the trooper failed to respond promptly. In comparison, the limited information the hunters conveyed lacked the immediacy of the report received in Lee. More importantly, the formidable distances, climatic conditions, and practical limitations on the available transportation choices made it nee-essary to consider factors not present in Lee.

In contrast, in Adams v. City of Tenakee Springs, we held that staffing a fire department was discretionary partly because it was a resource allocation decision. We relied in that case on Estate of Arrowwood v. State and Industrial Indemnification Co. v. State for the proposition that decisions regarding resource allocation are immune from judicial review. In Guerrero v. Alaska Housing Finance Corp., we held that "what qualifies as a matter of basic planning or policy often depends more on the factual cireumstances surrounding an agency's actions than it does on the actions' inherent nature." We quot ed Abbott's holding that "[olnce the initial policy determination is made ... decisions as to how that decision should be carried out ... [are] made at the operational level." Search and rescues may fall into this category because before troopers decide whether to launch a search or a rescue, they must evaluate weather and safety conditions, determine if suitable resources are available, and generally weigh the risks against the benefits of a particular endeavor.

Angnabooguk v. State, Department of Nat-wral Resources is particularly helpful in categorizing search and rescue decisions. There, a fire burned out of control after the Division of Forestry allegedly set a remedial fire that the division did not have enough resources to contain. We held that there was no actionable statutory duty of care to fight the fire non-negligently. We further held that the department's internal rules and guidelines did not create a duty of care. We did hold, however, that the department owed a duty of care as a matter of public policy. We relied on City of Fairbanks v. Schaible, in which we held that when a fire department chooses to fight a particular fire, it must do so non-negligently.

We went on to say in Angnabooguk that neither the Alaska Tort Claims Act nor our case law supported the department's contention that all firefighting decisions are protected by discretionary function immunity. First, we observed that the plain language of the tort claims statute did address some specific activities and we concluded that had the legislature intended to immunize all firefighting activities it could have said so in the statute. Second, we noted that we had never held that an entire class of decisions was "mecessarily bound up with policy considerations" sufficient to immunize all firefighting decisions. After reviewing the entirety of our discretionary function immunity jurisprudence, we reiterated the distinction between planning and operational decisions and instructed the superior court on remand to determine for each alleged negligent act whether it was a planning or an operational decision.

Just as we were not prepared in Angnae-boogul to hold that all firefighting decisions are entitled to discretionary function immunity, we are not prepared in this case to say that every search and rescue decision is immune from tort claims. We hold here, however, that the initial decision in this case whether to launch a search and rescue effort is sufficiently based on resource allocation and public policy considerations that it is immune.

In reaching that conclusion, we find Johnson v. United States, Department of Interior particularly instructive. In that case, a group of hikers climbing Buck Mountain in Grand Teton National Park lost contact with Johnson, a member of the group. One of the hikers notified park rangers that Johnson was missing. The park rangers did not initiate a climbing search and rescue until five hours after receiving the initial report that Johnson was lost. The rangers initiated a helicopter search early the next morning but Johnson had died of hypothermia the previous evening after sustaining injuries while descending the mountain. The United States Court of Appeals for the Tenth Cireait reviewed the process by which the rangers made search and rescue decisions. It recognized that they "must act without reliance upon fixed or readily ascertainable standards when making a search and rescue decision in the field." It then considered whether the rangers search and rescue decisions "simply" involved weighing considerations under an "established program" or whether they involved "the balancing of competing policy considerations." It observed that "[the discretionary function exception may apply in the absence of a conscious decision, so long as the ... search and rescue program allowed room for the rangers to make independent policy judgments." The court then held:

the rangers' decision if, when or how to rescue inherently involves the balancing of safety objectives against such practical considerations as staffing, funding and minimizing government intrusion. - As such, these decisions are grounded in social and economic policy, and thus are shielded from Hability under the [Federal Tort Claims Act] discretionary function exception.

Kiokun argues that the troopers' decisions whether and when to initiate a search and rescue are not discretionary. But we think that a decision whether to conduct a search and rescue is inherently a decision regarding public safety objectives and the allocation of resources.

The Wisconsin Supreme Court offers a different way to analyze search and rescues. It compares ministerial and discretionary activities and on a case-by-case inquiry applies a "known danger" exeeption to immunity. The court explained:

[A] dangerous situation will be held to give rise to a ministerial duty only when "there exists a known present danger of such force that the time, mode and occasion for performance is evident with such certainty that nothing remains for the exercise of judgment and discretion."
For the known danger exception to apply, the danger must be compelling enough that a self-evident, particularized, and non-discretionary municipal action is required. The focus is on the specific act the public officer or official is alleged to have negligently performed or omitted.

Lee v. State involved a particularized and non-discretionary trooper response to aid a girl whose arm was reported to be in the mouth of a lioness at a nearby amusement park. It is a graphic example of a "known danger" situation. The report identified a particularized threat, a victim already in extreme jeopardy and unlikely to be able to protect herself with her own resources, and a specific nearby location easily reached by the responding trooper. Given these cireum-stances, no conceivable discretion about whether to respond, when to respond, and where to go was involved. However, under Wisconsin's analysis, a report of the type received from the hunters cannot be classified as involving a "known danger" because the proper way to respond is not self-evident or non-discretionary. Judgment and discretion must be exercised in deciding what to do and how to do it in response to that sort of report.

In this case, the troopers received information about the Olruns and formulated a response based on weather conditions, accessibility of resources, and availability of manpower. The hunters found the Olruns' car at Mile 50 on the unmaintained Denali Highway, eighty miles from Cantwell and fifty miles from Paxson. The car was also eight miles from the Maclaren River Lodge and a mile and a half from Moore's Camp. After the hunters found the car, it took them about two hours and fifteen minutes to reach the Cantwell trooper post. The hunters did not know how long the car had been abandoned when they found it, but because they saw footprints and an arrow and "HELP" sign stamped in the snow, they reported that there were people in trouble. It was forty-five degrees below zero Fahrenheit the evening of January 15. The troopers did not know how the Olruns were dressed or what provisions they had with them. The extreme temperatures made aircraft searches or ground travel difficult or impossible.

We asked the parties for supplemental briefing on the issue of what decisions were made by the troopers and when. Trooper Heck made the decision sometime between 6:25 p.m. and 7:20 p.m. on January 15 that it was too cold and dark to proceed with rescue efforts that night, over an hour after the troopers received the hunters' report. Because the hunters had to drive about two hours to reach the Cantwell post, Trooper Heck made his decision more than three hours after the hunters left the abandoned vehicle. Kiokun's expert, an arctic engineer and "specialist in frost formation in Alaska weather" testified that the Olruns likely left their vehicle around 1:80 p.m. on January 15. This was perhaps six hours before Trooper Heck made his initial decision. Trooper Heck determined that it was likely that the Olruns could walk the eight miles to the lodge by the time anyone could reach them and that resources were better spent in the morning. Although the record establishes that Trooper Heck was later disciplined by the Department of Public Safety for failing to take further measures, for purposes of our discretionary function immunity inquiry, it was within the department's discretion for Trooper Heck to make his decision. In personal injury actions against the state, the issue of negligence arises only if the conduct at issue involves performance of an operational function and thus falls outside the protection of discretionary function immunity; by contrast, because sovereign immunity does not constrain a state agency's actions, the department may impose discipline for negligent breaches of its standards of conduct regardless of whether those breaches involve discretionary functions.

We conclude that the evaluation of weather conditions and resource availability is better left to the immediate discretion and expertise of the Department of Public Safety than evaluated in retrospect by the courts. We hold that the decision whether to initiate a search and rescue operation remains one of policy. Some, although not necessarily all, decisions made after a search and rescue is commenced may be operational.

We have said that if the state has breached a statute or regulation expressly requiring it to act under specific cireum-stances, its decisions are not protected by discretionary function immunity. - Kiokun argues that the troopers had a mandatory duty to go to the Olrung' aid under AS 44,41.020, which provides that "[the Department of Public Safety shall administer functions relative to the protection of life and property." The department responds that AS 18.60.120 controls searches and rescues. Alaska Statute 18.60.120 states:

Upon being notified that a person is lost, injured, killed, or is in need of immediate rescue, the commissioner of public safety or a designee may appoint a competent person to organize, direct, and guide a search and rescue party for the purpose of rescuing or retrieving the person of the person's remains.

We read these two statutes as authorizing the state to conduct search and rescue operations. We do not read them as imposing a mandatory duty which would be enforceable in the abstract regardless of the circumstances in a given situation. The state's duty necessarily turns on the cireumstances presented. This duty squarely implicates the same resource allocation and risk-benefit considerations best left to the persons who must decide what to do when troopers receive a report like the one the hunters made.

We similarly do not read the department's operations manual to impose an actionable duty. The state's arguable failure to adhere to the manual consequently does not prevent it from invoking the discretionary function immunity defense.

IV. CONCLUSION

Because the troopers' decision whether to initiate a search and rescue was protected from a tort claim by discretionary function immunity, we REVERSE the judgment, VACATE the jury verdict and damages award, and REMAND for entry of judgment for the state.

      . The dates and times and other specific facts set out here give context to the legal issues before us. And although we sometimes refer to facts described in the administrative investigation report, the dispositive facts are largely undisputed.

      . 490 P.2d 1206 (Alaska 1971).

      . The jury found that the department was fifty-one percent responsible for the Olruns' deaths. It awarded $1,800,000 for the Olruns' pre-death suffering, $451,996 in economic damages, and $7,480 for funeral expenses. It awarded $3,000,000 to Cynthia Olrun for losses relating to the death of her son and $2,500,000 collectively to all surviving family members for loss of society and mental distress damages.

      . Kiokun also filed a petition for review after the trial court ruled that the Alaska wrongful death statute, AS 09.55.580, does not allow claims for loss of adult consortium. The trial court also ruled that the non-economic damages cap under former AS 09.17.010 applied to wrongful death actions and the court applied the cap to the jury's award. Kiokun cross-appeals these two rulings. Our ruling on the immunity issue makes it unnecessary to consider the issues raised in Kiokun's petition and cross-appeal.

      . Angnabooguk v. State, Dep't of Natural Res., 26 P.3d 447 (Alaska 2001).

      . Kooly v. State, 958 P.2d 1106, 1107 (Alaska 1998).

      . Sauve v. Winfree, 985 P.2d 997, 999 (Alaska 1999).

      . A negligence action may lie against the state if the state owed a duty of care to the plaintiffs. Mesiar v. Heckman, 964 P.2d 445, 448 (Alaska 1998).

      . 490 P.2d 1206, 1210 (Alaska 1971) (holding that state trooper had duty to aid girl whose arm was in mouth of lioness at amusement park).

      . See Guerrero v. Alaska Hous. Fin. Corp., 6 P.3d 250, 254 (Alaska 2000); Kooly, 958 P.2d at 1108 (deciding first whether there is actionable duty before reaching immunity question}.

      . AS 09.50.250 waives sovereign immunity, allowing certain causes of action against the state, while simultaneously shielding state discretionary functions from legal challenge. It provides in pertinent part:
      A person ... having a ... tort claim against the state may bring an action against the state in a state court that has jurisdiction over the claim.... However, an action may not be brought under this section if the claim (1) ... is an action for tort, and based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a state agency or an employee of the state, whether or not the discretion involved is abused.

      . Dep't of Transp. & Pub. Facilities v. Sanders, 944 P.2d 453, 456 (Alaska 1997) ("Only acts or functions occurring at the planning level are entitled to immunity as discretionary functions under AS 09.50.250.").

      . Id.

      . AS 18.60.120 provides:
      Upon being notified that a person is lost, injured, killed, or is in need of immediate rescue, the commissioner of public safety or a desig-nee may appoint a competent person to organize, direct, and guide a search and rescue party for the purpose of rescuing or retrieving the person or the person's remains.

      . 944 P.2d 453 (Alaska 1997).

      . Id. at 457; see also Wallace v. State, 557 P.2d 1120, 1123 nn. 7, 8 (Alaska 1976).

      . - Earth Movers, Inc. v. State, 691 P.2d 281, 283-84 (Alaska 1984).

      . Estate of Arrowwood v. State, 894 P.2d 642, 645-46 (Alaska 1995).

      . Id.; Earth Movers, 691 P.2d at 283.

      . 949 F.2d 332, 338 (10th Cir.1991).

      . Id. at 338, 339.

      . 498 P.2d 712, 715-16 (Alaska 1972).

      . Id. at 716.

      . 555 P.2d 235, 240 (Alaska 1976).

      . Sanders, 944 P.2d at 456 (citing Abbott, 498 P.2d at 720-22).

      . Id.

      . See Indus. Indem. Co. v. State, 669 P.2d 561, 563 (Alaska 1983) ("[Clourts must not intrude into realms of policy exceeding their institutional competence."); Johnson v. State, 636 P.2d 47, 64 (Alaska 1981).

      . Berkovitz v. United States, 486 U.S. 531, 546, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988).

      . 490 P.2d 1206, 1210 (Alaska 1971).

      . Id. at 1208-09.

      . Id. at 1208.

      . Id.

      . 963 P.2d 1047, 1050-51 (Alaska 1998).

      . 894 P.2d 642, 646 (Alaska 1995).

      . 669 P.2d at 564-65.

      . 6 P.3d 250, 261-62 (Alaska 2000).

      . Id. at 262 (quoting Abbott, 498 P.2d at 722).

      . 26 P.3d 447 (Alaska 2001).

      . Id. at 451-52.

      . Id. at 452.

      . Id. at 452-53.

      . 375 P.2d 201 (Alaska 1962).

      . See also Adams v. City of Tenakee Springs, 963 P.2d 1047, 1049 (Alaska 1998) (affirming superi- or court in case in which jury was instructed that city could not be held liable for resource allocation but could be held liable for negligent conduct).

      . 26 P.3d at 454-55.

      . Id.

      . - Id. at 455 (original emphasis).

      . Id. at 456 n. 34.

      . Id. ("[The State's decision to engage in an activity is an immune 'planning' decision, while the decisions undertaken in implementing the activity are operational, as long as the implementation does not involve the consideration of policy factors.").

      . Id. at 458.

      . 949 F.2d 332 (10th Cir.1991).

      . Id. at 334-35.

      . Id.

      . Id. at 338.

      . Id. at 339.

      . Id.

      . Id. at 339; see also Huber v. United States, 838 F.2d 398, 401 (9th Cir.1988) (Coast Guard can decide whether to aid vessel); In re Am. Oil Co., 417 F.2d 164, 168 (5th Cir.1969) (Coast Guard's search and rescue plan imposed no duty on government to public}.

      . - Lodl v. Progressive N. Ins. Co., 253 Wis.2d 323, 646 N.W.2d 314, 323-24 (2002); see also Hoskins v. Dodge County, 251 Wis.2d 276, 642 N.W.2d 213, 219-20 (App.2002).

      . Lodl, 646 N.W.2d at 324 (quoting C.L. v. Olson, 143 Wis.2d 701, 422 N.W.2d 614 (1988)).

      . 490 P.2d 1206 (Alaska 1971).

      . In their supplemental briefing, both parties referred to the administrative investigation report. The department objected on the grounds that the report was not admitted into "record evidence." After considering the department's objections, we believe the report contains helpful information, and we have relied on it in discussing some details of the troopers' activities.

      . Kooly v. State, 958 P.2d 1106, 1108 (Alaska 1998).

      . See Sanders, 944 P.2d at 458-59 ("Because the governing regulation provides no standards that a court might use to analyze the non-enforcement decision, the non-enforcement decision is protected by the discretionary function exception in AS 09.50.250(1).").

      . Cf. Angnabooguk, 26 P.3d at 459 ("[Clertain on-the-scene firefighting tactical decisions may be considered discretionary because they entail resource allocation decisions or considered decisions of firefighting policy that are properly vested in the officials in charge.").

      . See id. at 457.


author: MANNHEIMER, Judge.

text:
    Pedro CRUZ-REYES, Appellant, v. STATE of Alaska, Appellee.
    No. A-8207.
    Court of Appeals of Alaska.
    July 25, 2003.

      J. Jake Ketscher, Assistant Public Defender, Kodiak, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
    Joseph S. Susser, Assistant District Attorney, J. Michael Gray, District Attorney, Kodiak, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

On April 11, 2001, Alaska State Troopers searched the Kodiak residence of Pedro Cruz-Reyes and found a "black box" connected to his television set-i.e., an electronic device capable of converting or unscrambling cable television signals, thus allowing Cruz-Reyes to view all of the premium cable services offered by General Communication, Inc. (GCI) in the Kodiak area. Cruz-Reyes was a GCI subscriber, but he paid only for the standard cable package, not any of the "premium" cable packages-packages which included various movie channels, pay-per-view events, and other higher-cost television entertainment.

After the troopers found the black box, they interviewed Cruz-Reyes. Cruz-Reyes's native tongue is Spanish, so the trooper leading the investigation (Trooper Charles Cross) questioned Cruz-Reyes through a translator-Trooper Hervey Lopez Ibarra, whose native tongue is Spanish and who had served as a translator when he was in the military.

Through this interpreter, Cruz-Reyes told the troopers that he had purchased the black box from a co-worker whose name he did not provide, and that the device had been installed on his televigion for the past four months. Ultimately, Cruz-Reyes was charged with third-degree theft of services (services having a value of at least $50 but less than $500). Following a jury trial in the Kodiak district court, Cruz-Reyes was convicted of this offense.

In this appeal, Cruz-Reyes argues that his conviction is not supported by the evidence, that the jury was misinstructed on the elements of third-degree theft of services, and that the trial judge committed procedural and evidentiary errors that prejudiced the fairness of the trial. For the reasons explained here, we reject Cruz-Reyes's various assertions of error, and we therefore affirm his conviction.

Did the charge of theft of services require the State to prove that Cruzs-Reyes actually watched the premium cable channels that he had not paid for? Or was the offense established by proof that Cruz-Reyes altered his television so that he could view these channels if he wished?

As defined in AS 11.46.200(a)(1), a person commits theft of services if, through the use of "deception ... or other means to avoid payment for the services", the person "obtains services [which the person knows are] available only for compensation". And, with respect to the theft of services, the word "obtain" is defined in AS 11.46.990(12)(B) as "secur[ing] performance of the service".

Cruz-Reyes's appeal presents a question concerning the meaning of "obtain" in the context of unauthorized access to cable television channels. - Cruz-Reyes asserts that, in this context, "obtaining" premium cable channels means actually watching these channels. Only then, Cruz-Reyes argues, can it be said that the defendant has "secured performance of the service". According to this argument, it was not sufficient for the State to prove that Cruz-Reyes had modified his television so that he might watch the premium channels if he wished. Rather, the State was obliged to prove that Cruz-Reyes {or other people, at his invitation) had actually watched unpaid-for television shows on these channels.

This legal issue came up at Cruz-Reyes's trial when the parties discussed the jury instructions. Superior Court Judge Donald D. Hopwood, sitting in the District Court, ultimately rejected Cruz-Reyes's interpretation of the word "obtains". Instead, Judge Hopwood gave the following jury instruction:

In relation to services, "obtain" means to secure performance of the service. To secure performance of the service, a person must have access to, or be able to use, the service. The person need not actually use or benefit from the service.

On appeal, Cruz-Reyes renews his contention that this jury instruction was wrong and that the State was obliged to prove that he actually watched television programs on the premium channels that he was not paying for.

The statutes dealing with theft of services vary a good deal from state to state; because of this, there is little pertinent case law from other jurisdictions to help us resolve this issue of law. We have also examined the commentary to the Model Penal Code's theft of services provision (§ 228.7), but this point is not discussed in that commentary. Nevertheless, we conclude that Judge Hopwood's interpretation of the statute is correct.

As explained above, the definition of theft that pertains to this case is derived from reading - AS 11.46.200(a)(1) and AS 11.46.990(12)(B) in conjunction. According to these two statutes, theft of services consists of using deception (or any other means to avoid payment) to secure performance of a service that the defendant knows is available only for compensation.

Cruz-Reyes concedes that the State's evidence was sufficient to prove that, without notifying the cable television provider and paying the appropriate monthly fee, he installed a machine that decoded the cable television provider's premium channels-thus enabling his television set to display the programs offered on these premium channels. The question is whether, by this conduct, Cruz-Reyes "secured performance" of the premium cable television service.

Cruz-Reyes argues that a person does not "secure performance" of a cable television service unless the person actually watches the programs that are broadcast via the cable. But this is not the normal understanding of cable service. Generally, people who subscribe to a cable television service are billed a monthly fee that is based, not on how many shows they actually watch, but rather on the selection of channels to which they have access. With the exception of special "pay-per-view" movies and sporting events, the subscriber's fee for cable access does not vary according to how many television shows the subscriber actually watches. Rather, the fee is for access-the opportunity to watch shows if one wishes to. Thus, the monthly fee remains the same whether the subscriber sits glued to the television for hours per day or, instead, vacations for several weeks in the south of France and never once turns on their home television.

We therefore conclude that the challenged jury instruction was correct. When Cruz-Reyes installed the equipment that allowed him access to the programs on his cable television provider's premium channels, he "secured performance" of the premium cable service, even if he never watched any of the programs on these channels.

Cruz-Reyes's motion for a judgement of acquittal

In a related argument, Cruz-Reyes argues that Judge Hopwood should have granted him a judgement of acquittal because the State's evidence was not sufficient to support the charge of theft.

The first part of Cruz-Reyes's argument involves the issue we have just resolved whether theft of cable services requires proof that the defendant actually watched cable programs without paying, or whether the offense is proved by evidence that the defendant obtained access to these programs without paying. As we explained in the previous section of this opinion, access is sufficient.

Cruz-Reyes then argues that, even if access is sufficient, the State never proved that he actually had access to the premium channels. Cruz-Reyes points out that the troopers who came to his house never flipped through the channels to see what channels his television set was actually receiving. Thus, Cruz Reyes argues, the State's evidence was insufficient to prove that his television was capable of receiving and displaying the unauthorized cable programming.

As Judge Hopwood noted when he denied Cruz-Reyes's motion for judgement of acquittal, the question is whether there was sufficient evidence for a reasonable jury to conclude that, by attaching the black box to his television, Cruz-Reyes obtained access to the programs on the premium cable channels. The judge pointed out that, according to the testimony, the black box had been hooked up to Cruz-Reyes's television for four months. The judge further pointed out that, after the troopers seized the black box from Cruz-Reyes's residence, technicians at GCI connected the black box to their system to see what channels it would decode and give access to. They found that the black box permitted display of every channel that their company distributed via cable.

Based on this evidence, a reasonable jury could conclude that the black box gave Cruz, Reyes access to these same channels when it was connected to his television. Thus, the State's evidence was sufficient to establish Cruz-Reyes's guilt of theft of the premium cable services. (As explained earlier, Cruz, Reyes was paying for the standard cable service.)

Does a witness's testimony concerning a person's statements take on an added layer of hearsay if those statements are related to the witness through an interpreter?

As explained above, Trooper Cross interviewed Cruz-Reyes through an interpreter-his colleague, Trooper Ibarra. At trial, Trooper Cross testified concerning the statements that Cruz-Reyes made during this interview.

Under Alaska Evidence Rule 801(d)(2)(A), a criminal defendant's out-of-court statements are not hearsay if they are introduced by the State. But this rule assumes that the State's witness (the one who testifies about the defendant's statements) is speaking from first-hand knowledge-that the witness is a person who heard the defendant make those statements. In the present case, Trooper Cross "heard" Cruz-Reyes make the statements at issue here, in the sense that Trooper Cross was in Cruz-Reyes's presence and could hear him speaking. But Cross did not understand what Cruz-Reyes was saying. Cruz-Reyes's statements were intelligible to Cross only because of Trooper Tbarra's translation.

For this reason, Cruz-Reyes asserts that Cross's testimony contained an extra layer of hearsay. That is, Cross was not really testifying about what he heard Cruz-Reyes say. Rather, Cross was testifying about Ibarra's version of what Cruz-Reyes said. Thus, Cruz-Reyes argues, Cross's testimony was not admissible over Cruz-Reyes's hearsay objection.

Whether an out-of-court interpreter or translator adds another layer of hearsay to a witness's testimony appears to be an issue of first impression in Alaska. The State asks us to adopt the "language conduit" rule set out in United States v. Koskerides, 877 F.2d 1129, 1185 (2nd Cir.1989)-the rule that a translator who acts as a mere "language conduit" does not add an extra layer of hearsay. Cruz Reyes, for his part, argues that the Koskerides decision is unpersuasive and represents bad law.

Our research suggests that Koskerides may in fact represent the majority view. The federal and state courts that have addressed this issue in recent years have generally held that an interpreter does not add another layer of hearsay-either under the theory that the interpreter acted as an agent of the declarant, or under the theory that the interpreter acted merely as a language conduit between the participants in the conversation (or some combination of the two theories).

It therefore appears that the weight of recent authority favors the rule that a translator-at least, a translator who is capable and fair-does not add another layer of hearsay to a conversation. In Cruz-Reyes's case, Trooper Ibarra was a native speaker of Spanish who had previously worked as a translator in the military. Moreover, the defense did not question the accuracy of Tbarra's translation (either his translation of Cross's words into Spanish or his translation of Cruz-Reyes's words into English). Given these circumstances, there would appear to be no hearsay impediment to having Cross testify about Cruz-Reyes's statements.

However, we need not definitively resolve this issue of hearsay law to resolve Cruz-Reyes's appeal. Cross was not the only witness who testified about the conversation with Cruz Reyes; Ibarra did too. Because Ibarra's account of the conversation was the same as Cross's, and because the defense did not attack the accuracy of that account, we conclude that any arguable error in allowing Cross to describe the conversation was harmless.

The issues surrounding the testimony of Timothy Brady

During the trial, an interpreter sat with Cruz-Reyes and translated the proceedings to him. The prosecutor believed that the interpreter's presence was a latent attack on the State's case: for if Cruz-Reyes understood so little English that he needed an interpreter in court, why would Cruz-Reyes want to steal cable television programming that was in English?

To help establish Cruz-Reyes's motive for stealing the cable services, the prosecutor decided to call a witness who knew Cruz-Reyes and could testify that he was conversant in English. This witness was Timothy Brady, an officer with the Immigration and Naturalization Service.

Although Brady had dealt with Cruz-Reyes on a number of occasions, Brady did not remember Cruz-Reyes by name. The prosecutor asked Brady to attend court on the second day of the trial, to see if Brady recognized Cruz-Reyes. Brady did recognize Cruz-Reyes, and he told the prosecutor that he was ready to testify (1) that he had spoken to Cruz-Reyes a number of times, and (2) that Cruz-Reyes was able to speak and understand English. At this point, the prosecutor notified the defense attorney that he intended to call Brady to testify about Cruz-Reyes's proficiency in English.

The defense attorney objected that Brady had not been disclosed as a potential witness when the State made its pre-trial disclosure under Alaska Criminal Rule 16(b). However, when Judge Hopwood asked the defense attorney to explain how Cruz-Reyes was prejudiced by this late addition to the State's witnesses, the defense attorney did not claim that he was prejudiced by the short notice, nor did he ask for additional time to prepare for Brady's testimony. Instead, he switched gears and argued (1) that Brady's testimony was not relevant, and (2) that the jurors would be prejudiced against Cruz-Reyes when they found out that Brady was an INS officer. Based on the defense attorney's response (in particular, the defense attorney's failure to claim prejudice), Judge Hopwood ruled that Brady's testimony would not be excluded on the ground that the defense had received short notice of the proposed testimony.

On appeal, Cruz-Reyes asserts that he was, in fact, prejudiced by the short notice of Brady's testimony-that his defense attorney did not have an adequate opportunity to prepare to cross-examine Brady concerning Cruz-Reyes's proficiency in English But this argument was not presented to Judge Hopwood. As this Court stated in Collins v. State, "[ When] the defense claims a mid-trial discovery violation, the defendant must present the trial court with a plausible claim of prejudice and request appropriate relief."

Cruz-Reyes also renews his argument that Brady's testimony was not relevant. But Cruz-Reyes's proficiency in English was relevant to his motive (or lack of motive) to steal the cable television programming. Thus, Brady's testimony (that Cruz Reyes could understand and speak English) was relevant to the issues being litigated.

Finally, Cruz-Reyes argues that he was prejudiced by the fact that Brady was an officer for the Immigration and Naturalization Service. He contends that if the jurors knew that Brady was an INS officer, the jurors would infer that Brady was acquainted with Cruz-Reyes because Cruz-Reyes had committed other crimes or had violated United States immigration laws. But Cruz-Reyes's argument is speculative.

First, Brady was never identified to the jurors as an INS officer. When this issue came up at trial, the prosecutor explained that he did not intend to introduce any evidence of Brady's profession or the reasons for Brady's acquaintance with Cruz-Reyes. Brady would simply testify that he knew Cruz Reyes, that he had spoken with Cruz-Reyes on a number of occasions, and that Cruz-Reyes had no apparent difficulty understanding English.

Cruz-Reyes suggests that it is possible that one or more members of the jury recognized Brady as an INS officer. But the defense attorney did not ask to voir dire the jurors concerning their knowledge of Brady. Moreover, even if one or more jurors had recognized Brady as an INS agent, there was no testimony that Brady's acquaintance with Cruz-Reyes stemmed from official business of the INS.

Finally, even if the jurors had known that Brady was an INS officer and had surmised that his knowledge of Cruz-Reyes stemmed from official business, it is complete speculation that the jurors would have further concluded that this official business involved misconduct on the part of Cruz-Reyes. Thousands of foreign nationals meet with INS officers in the normal process of obtaining work and/or residency in this country. Even if the jurors somehow surmised that Cruz-Reyes had spoken several times with an officer of the INS, this does not lead to the conclusion that Cruz-Reyes had broken the law on past occasions.

For these reasons, we uphold Judge Hop-wood's decision to allow the State to present the testimony of Timothy Brady.

Conclusion

The judgement of the superior court is AFFIRMED.

      . AS 11.46.100(5) and AS 11.46.200(a) (defining theft of services); AS 11.46.140(a)(1) (defining theft in the third-degree).

      . For example, Pennsylvania's theft of services statute, 18 Pa.Cons.Stat.Ann § 3926(a)(1) (West 2003), contains language that explicitly covers the type of conduct involved in this case:
      A person is guilty of theft if he intentionally obtains services for himself or for another which he knows are available only for compensation, by deception or threat, by altering or tampering with the public utility meter or measuring device by which such services are delivered or by causing or permitting such altering or tampering, by making or maintaining any unauthorized connection, whether physically, electrically or inductively, to a distribution or transmission line, by attaching or maintaining the attachment of any unauthorized device to any cable, wire or other component of an electric, telephone or cable television system or to a television receiving set connected to a cable television system, [or] by making or maintaining any unauthorized modification or alteration to any device installed by a cable television system, or by false token or other trick or artifice to avoid payment for the service.
      Similarly, Wisconsin has a statute, Wis.Stat. Ann. § 943.46 (West 2003), that is specifically directed toward theft of cable television service. Section (2)(a) of this statute makes it a crime to "lolbtain or attempt to obtain cable television service from a company by trick, artifice, deception, use of an illegal device or illegal decoder or other fraudulent means with the intent to deprive that company of any or all lawful compensation for rendering each type of service obtained." And section (2)(d) of this statute makes it a crime to "[mJake or maintain a connection, whether physical, electrical, mechanical, acoustical or by other means, with any cables, wires, components or other devices used for the distribution of cable television services for the purpose of obtaining cable television service without payment of all lawful compensation to the company providing that service."

      . Federal Courts: United States v. Beltran, 761 F.2d 1, 9 (1st Cir.1985); United States v. Lopez, 937 F.2d 716, 724 (2nd Cir.1991); United States v. Da Silva, 725 F.2d 828, 831-32 (2nd Cir.1983); United States v. Nazemian, 948 F.2d 522, 526 (9th Cir.1991); United States v. Alvarez, 755 F.2d 830, 859-860 (iith Cir.1985). See generally, Beth Bates Holliday, Interpreter or Translator as Party's Agent for Purposes of "Admission by Party-Opponent'' Exception to the Hearsay Rule (Federal Rules of Evidence, Rules 801(d)(2)(C), 801(d)(2)(D)), 121 A.L.R.Fed. 611 (1994).
      State Courts: Correa v. Superior Court, 27 Cal.4th 444, 117 Cal.Rptr.2d 27, 40 P.3d 739, 746-151 (2002); State v. Randolph, 698 SW.2d 535, 538-39 (Mo.App.1985); State v. Patino, 177 Wis.2d 348, 502 N.W.2d 601, 610 (App.1993); State v. Robles, 157 Wis.2d 55, 458 N.W.2d 818, 821-22 (App.1990).

      . 977 P.2d 741, 745 (Alaska App.1999).