Alaska R. Civ. P. 72

(a) Applicability of Other Rules. The procedure for the

condemnation of property under the power of eminent domain

is governed by the Civil Rules, except as otherwise provided in

this rule.

(b) Joinder of Properties. The plaintiff may join in the

same action one or more separate pieces of property, whether

in the same or different ownership and whether or not sought

for the same use. Severance shall be freely granted in

furtherance of convenience or to avoid prejudice, or when

separate trials will be conducive to expedition and economy.

(c) Commencement of Action.

(1) Complaint. An action for the condemnation of

property under the power of eminent domain is commenced by

filing a complaint and, if used, a declaration of taking. The

complaint, in order to be accepted for filing, must be

accompanied by a completed case description on a form

provided by the clerk of court.

(2) Contents of Complaint.

(A) The complaint must contain:

(i) a caption naming as defendants the persons described

in subsection (c)(2)(A)(vii), commencing with the apparent

owners of the fee simple interest in the property to be taken,

and the property designated generally by kind, quantity, and

location;

(ii) a statement of the authority and necessity for the

taking;

(iii) a statement of the use for which the property is to be

taken;

(iv) a description of the property to be taken sufficient to

identify and locate it;

(v) a statement of the interests to be acquired, including

the terms and conditions of any easements;

(vi) a statement of the amount of money the plaintiff

estimates to be just compensation for the taking;

(vii) the name and apparent interest of all persons having

or claiming an interest in the property who can be ascertained

by a reasonably diligent search of the records or otherwise

known to the plaintiff to claim an interest in the property.

(B) The statement of just compensation required under

subsection (c)(2)(A)(vi) constitutes a judicial admission by the

plaintiff. The names and apparent interests required under

subsection (c)(2)(A)(vii) do not constitute admissions by the

plaintiff.

(3) Exhibits to Complaint. The decisional document for

the taking and a map or plat of the property to be taken must be

attached as exhibits to the complaint.

(d) Process.

(1) Summons. Upon filing of the complaint, the clerk

shall forthwith issue a summons in condemnation and deliver it

to the plaintiff, who shall cause the summons and a copy of the

complaint to be served in accordance with Civil Rule 4. Upon

request of the plaintiff, separate or additional summonses shall

issue against any defendants.

(2) Contents of Summons.

(A)

A summons in condemnation must state:

(i) the court where the action was filed;

(ii) the caption of the action;

(iii) the name of the defendant to whom the summons is

directed;

(iv) the name, address and telephone number of plaintiff’s

counsel; and

(v) the name of the judge to whom the case is assigned.

(B) The summons must also state:

(i) that if the defendant disputes the authority and

necessity for the taking or objects to the declaration of taking,

the defendant must file within twenty days after service of the

summons upon the defendant an answer stating all of the

defendant’s objections and defenses;

(ii) that failure to file an answer within such time

constitutes a waiver by the defendant of all objections and

defenses to the authority and necessity for the taking and to the

validity of the declaration of taking;

(iii) that if the action is not dismissed, the time when

plaintiff may take possession, the amount of compensation to

be paid for the taking, and the distribution of compensation

will be determined by further proceedings in the action;

(iv) that if the defendant disputes the amount of just

compensation, or claims any part of the compensation to be

paid in the action, or desires notice of further proceedings in

the action, the defendant must file within twenty days after

service of the summons upon the defendant a notice of

appearance, stating the name and address of the person to

whom notice should be sent, or the court will proceed to a final

determination of just compensation without further notice to

the defendant; and

(v) that a defendant who fails to appear within the time

specified may file a notice of appearance at any time before a

final determination of just compensation is made and may

present evidence as to the amount of just compensation to be

paid or its distribution; however, the filing of an untimely

notice of appearance, absent a showing of good cause that

would justify setting aside a default under Civil Rule 55(e),

does not relieve a defendant of the effect of prior orders

entered by the court or a final determination of just

compensation;

(vi) that ten days following a final determination of just

compensation the court will enter judgment by default for the

relief demanded in the complaint against any defendant who

has failed to appear.

(3) Service. The summons, a copy of the complaint and,

if used, a copy of the declaration of taking must be served on

the defendants and return of service made in conformity with

Civil Rule 4.

(e) Answer or Appearance.

(1) Answer. If the defendant objects to the authority and

necessity for the taking or to the validity of the declaration of

taking, the defendant must file an answer stating all of the

defendant’s objections and defenses. The answer must be filed

within twenty days after service of the summons upon the

defendant.

(2) Notice of Appearance. If the defendant disputes the

amount of just compensation, or claims any part of the

compensation to be paid in the action, or desires to receive

notice of further proceedings in the action, the defendant must

file a notice of appearance, stating the name and address of the

person to whom notice should be sent. The notice of

appearance must be filed within twenty days after service of

the summons upon the defendant. A notice of appearance

preserves all claims concerning the amount of compensation to

be paid and its distribution. A notice of appearance may be

filed with an answer.

(3) Disclaimer. If a defendant has no objection to the

taking or to loss of possession of the property, or no claim to

any part of the compensation deposited or to be paid in the

action, the defendant may file a disclaimer of interest in the

proceedings. A disclaimer may be filed after an answer or

appearance. The parties and the court are not required to

provide notice of proceedings to a defendant who has filed a

disclaimer.

(4) Failure to Respond. Failure to file an answer within

the time specified in subparagraph (e)(1) constitutes a waiver

by the defendant of all objections and defenses to the authority

and necessity for the taking and to the validity of the

declaration of taking. The filing of an untimely notice of

appearance, absent a showing of good cause that would justify

setting aside a default under Civil Rule 55(e), does not relieve

a defendant of the effect of prior orders entered by the court or

a final determination of just compensation. Ten days following

a final determination of just compensation, the court upon

motion, may enter judgment by default for the relief demanded

in the complaint against a defendant who has not filed a notice

of appearance.

(5) Other Pleadings or Motions. All objections and

defenses to the taking must be set forth in the answer. No

counterclaims, cross-claims, or third party claims are allowed,

unless the court determines that such claims should be

consolidated with the condemnation action under Civil Rule

42(a).

(f) Amendment of Pleadings. The plaintiff may amend

the complaint without leave of court at any time before trial of

the issue of compensation and as many times as desired;

however, no amendment may be made which would result in a

dismissal prohibited under paragraph (i) of this rule. Service of

the amended complaint upon a party who has appeared must be

made as provided in Civil Rule 5(b). Service upon a party who

has not appeared must be made as provided in paragraph (d) of

this rule. A defendant who is served with an amended

complaint may file and serve a response within the time

allowed by paragraph (e) of this rule.

(g) Substitution of Parties. If a defendant dies or

becomes incompetent or transfers its interest in the litigation,

the court shall order substitution of the proper party upon

motion. The provisions of Civil Rule 25(a) do not apply to

actions proceeding under this rule. Service of the motion upon

a person not already a party to the action must be made as

provided in Civil Rule 4.

(h) Hearing and Trial.

(1) Special Discovery Rules.

(A) Expedited Discovery on Authority, Necessity and

Possession. Any time after service of the summons, any party

may conduct discovery, including depositions, regarding

matters to be decided at the hearing provided for under

subparagraph (h)(2). Responses to interrogatories, requests for

production or inspection, and requests for admissions must be

served within fifteen days after service of the interrogatories or

requests; however, a defendant need not respond earlier than

ten days after the time allowed for filing an answer.

(B) Appraisals and Expert Reports. Each party, within

forty-five days after filing its complaint, answer, or

appearance, must exchange with every other party who has

answered or appeared all appraisals of property within the

scope of the taking completed within the five years preceding

the date of taking. Forty-five days before the master’s hearing

and again thirty days before the close of discovery, the parties

must simultaneously exchange all appraisals of the property

and expert reports relating to just compensation completed

since the summons was issued.

(2) Authority/Necessity/Possession.

(A) Declaration of Taking. If no objection to authority

and necessity for the taking is contained within the answer,

filed within the time period provided by subparagraph (e)(1) of

this rule, the court shall enter an order confirming authority

and necessity. If timely objection is made, the objecting party

must, within thirty days after service of the summons, file a

motion to dismiss setting forth the objections with specificity.

The plaintiff may file an opposition to the motion within ten

days after service of the motion upon the plaintiff. The

objecting party may file a reply within three days after service

of the opposition upon the objecting party. Either party may

request a hearing. The court shall hold a hearing within twenty

days after a request for hearing is filed. The hearing will be

based on the record unless a request for evidentiary hearing

and statement of genuine issues of material fact is filed by the

objecting party with the motion or by the plaintiff with the

opposition and the court determines that there are genuine

issues of material fact. In the event the objections are found to

be valid, the court may dismiss the action, remand to the

condemning entity for further findings, or order such other

relief as allowed by law.

(B) Motions for Possession under AS 09.55.390 and .400.

Upon the filing of a motion pursuant to AS 09.55.390 or

09.55.400, the court shall schedule and conduct a hearing on

the motion. The motion, any opposition to the motion, and any

reply by the moving party must be in the form and filed within

the time limits prescribed by Civil Rule 77 for dispositive

motions, except that no opposition shall be due earlier than

thirty days after service of the summons upon that defendant.

(C) Other Condemnation Actions. In an action in which

neither a declaration of taking nor the procedures set forth in

AS 09.55.390–.400 have been utilized, a party may move, no

earlier than sixty days after service of the summons upon all

defendants, for an order determining whether there is authority

and necessity for the taking. The motion, any opposition to the

motion, and any reply by the moving party must be in the form

and filed within the time limits prescribed by Civil Rule 77 for

dispositive motions.

(D) Possession. In an action in which a declaration of taking has been filed, a party may move, either contemporaneously with proceedings on authority and

necessity or after authority and necessity has been determined,

for an order setting the date and terms under which possession

of the property will vest in the plaintiff. In an action subject to

AS 09.55.380, any party may move to have the questions of

possession decided after a final determination of compensation

is made or after the plaintiff has deposited sufficient funds or

security to satisfy the court that the parties are protected.

(E) Finality. An order entered under section (h)(2)(A),

(B), or (C) is a final judgment for purposes of appeal under

Appellate Rule 202.

(3) Master’s Hearing.

(A) Procedure. A master will be appointed to hear

evidence and to ascertain the amount to be paid by the plaintiff

to each owner or other person interested in the property, unless

the master’s hearing is waived under section (h)(3)(B) of this

rule. Any interested party may move the court for an order

appointing the master. The motion must set forth the name,

address and phone number of any individual proposed as

master, proposed instructions to the master, a written oath, and

a form of report for use by the master. The form of report must

incorporate a cover sheet in a form prescribed by the

Administrative Director of the Courts. The court may appoint a

master from the nominees of the parties or of its own

nomination, subject to the provisions of Civil Rule 42(c). The

order of reference to the master must set forth the master’s

duties and powers and must be accompanied by instructions on

the law that the master must apply. Civil Rule 53 does not

apply to master’s proceedings under this rule.

(B) Waiver. If all parties agree, the master’s hearing may

be waived and the matter set for trial. In that event, A Notice

of Waiver of Master’s Hearing shall be filed, along with proof

of service under Civil Rule 5 upon all parties to the action.

(4) Filing of Master’s Report. The master shall file the

master’s report with the cover sheet prescribed by the

Administrative Director of the Courts. The clerk of court shall

promptly serve the report on all parties who have answered or

appeared.

(5) Appeal From Master’s Report.

(A) Appeal in the form of a trial de novo may be taken

from the master’s report by filing a memorandum to set trial

within the following time limits:

(i) the plaintiff may appeal within ten days after service

of the master’s report; and

(ii) a defendant may appeal within fifteen days after

service of the master’s report.

(B) The memorandum to set trial must contain the

information required by Rule 40(b)(1)(a)–(d), (f), and (g).

(6) Demand for Jury Trial.

(A) If all parties to the action have waived appointment of

a master under subparagraph (h)(3), a jury trial may be had if

demand is made by any party within twenty days after service

of the Notice of Waiver of Master’s Hearing upon that party.

Otherwise, trial will be by the court.

(B) Upon filing of an appeal under subparagraph (h)(5), a

jury trial may be had if demand is made by any party within

twenty days after filing of the appeal from the master’s report.

Otherwise, trial will be by the court.

(i) Dismissal of Action.

(1) As of Right. If no hearing has commenced to

determine the compensation to be paid for the property and the

plaintiff has not acquired title or a lesser interest in or taken

possession of the property, the plaintiff may dismiss the action

as to that property, without an order of the court, by filing a

notice of dismissal describing the property as to which the

action is dismissed.

(2) By Stipulation. Before entry of judgment vesting the

plaintiff with title or a lesser interest in or possession of the

property, the action may be dismissed in whole or in part,

without an order of the court, as to any property by stipulation

of the plaintiff and the defendant affected thereby; and, if the

parties so stipulate, the court may vacate any judgment that has

been entered.

(3) By Order of the Court. Any time before compensation for property has been determined and paid, the

court may dismiss the action as to that property after motion

and hearing, except that the court may not dismiss the action as

to any part of the property of which the plaintiff has taken

possession or in which the plaintiff has taken title or a lesser

interest, but shall award just compensation for the possession,

title or lesser interest taken. The court may dismiss at any time

a defendant unnecessarily or improperly joined.

(4) Want of Prosecution. The court shall not enter an

order dismissing a case for want of prosecution. On its own

motion or upon motion of a party, the court may schedule a

pretrial conference to expedite resolution of a case.

(5) Effect. A dismissal under this paragraph is without

prejudice except as otherwise provided in the notice,

stipulation, or order.

(j) Deposit and Its Distribution. The plaintiff shall

deposit with the court any money required by law as a

condition to the exercise of the power of eminent domain, and

may make such deposit even when not required to do so by

law. The notice of deposit must disclose the extent to which

the deposit represents principal, interest, costs and fees, if any.

The court and attorneys shall expedite the proceedings for

distribution of the deposit and for ascertainment and payment

of just compensation. The court may order distribution of the

deposit at any time. Such order is effective only as to parties

whose time to appear has expired. Upon entry of an order

distributing funds on deposit, the clerk of court shall disburse

the funds expeditiously. If the compensation finally awarded to

a defendant exceeds the amount that has been paid to the

defendant on distribution of the deposit, the court shall enter

judgment against the plaintiff and in favor of the defendant for

the deficiency. If the compensation finally awarded to a

defendant is less than the amount that has been paid to the

defendant, the court shall enter judgment against the defendant

and in favor of the plaintiff for the overpayment.

(k) Costs. Costs and attorney’s fees incurred by a

defendant must be assessed against the plaintiff if:

(1) the taking of the property is denied;

(2) the plaintiff appeals from the master’s award and the

defendant does not appeal;

(3) the award of the court was at least ten (10) percent

larger than the amount deposited by the condemning authority

or the allowance of the master from which an appeal was taken

by the defendant;

(4) the action was dismissed under the provisions of

paragraph (i) of this rule; or

(5) allowance of costs and attorney’s fees appears

necessary to achieve a just and adequate compensation of the

defendant.

Attorney’s fees allowed under this paragraph must be

commensurate with the time expended by the attorney

throughout the proceedings.

(l) Offer of Judgment. A party may make an offer of

judgment to another party under the provisions of Civil Rule

68, which shall apply to eminent domain actions in all respects

except as set forth below.

(1) If the plaintiff makes a successful offer of judgment

against a defendant, the defendant may not recover costs and

fees incurred after the making of the offer of judgment except

as reasonable and necessary to evaluate the offer of judgment.

This shall not preclude the award of costs and fees as allowed

under Civil Rule 72(k)(1)–(5) incurred prior to the making of

the offer of judgment. In no event shall a defendant be required

to pay the costs and fees of the plaintiff.

(2) If a defendant makes a successful offer of judgment

against the plaintiff, the defendant is entitled to recover full

reasonable and necessary costs and attorney’s fees without

regard to Civil Rule 72(k).

(3) For purposes of applying Civil Rule 68, the defendant

is the party making the claim and the plaintiff is the party

defending against the claim. Any adjustment in interest rates

shall operate only from the date the offer of judgment was

made. When two defendants use Civil Rule 68 as against the

other, the adjustment in prejudgment interest provisions do not

apply.

(m) Definitions. For purposes of this rule, a final

determination of just compensation is not made until all issues

of the amount of just compensation to be paid and its

distribution to the parties entitled to just compensation are

resolved by the entry of judgment on a jury verdict, the court’s

confirmation of an award of the master, a final order of the

court accepting a settlement agreement of the parties, or the

last such order or judgment that resolves any part of these

issues.