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McDowell v State 785 P 2d 1 Alaska 1989 In Constitution of AK Section 17 Uniform Application Notes to Decisions Statute granting preference to rural residents Sam and A Joyce McDowell own residential and investment property in Sterling Alaska Their property is adjacent to the Sterling Highway During the winter of 1988-89 the state conducted a right-of-way acquisition survey of land located across the Sterling Highway from the McDowells John and Carol Cook owned the surveyed land and operated Cooks Tesoro a gas station on it The state sought to acquire this property by eminent domain for a Sterling Highway expansion project During this survey the state discovered petroleum contamination under Cooks Tesoro The state conducted remediation work at the site in October and November 1990 and subsequently acquired the Cooks Tesoro property as a right-of- way for the Sterling Highway In December 1991 the McDowells discovered that a large portion of their property including their drinking water well was contaminated with petroleum After conducting a groundwater investigation of the area the Department of Environmental Conservation concluded in January 1993 that this contamination had migrated to the McDowells property from Cooks Tesoro The McDowells filed a complaint against Cooks Tesoro Service Station Tesoro Alaska Petroleum Company and the state in August 1993 The complaint asserted a number of claims including negligence trespass and nuisance arising out of the Cooks Tesoro contamination and remediation This would not be the last filed complaint The state filed a summary judgment motion in response to the McDowells complaint arguing that the negligence claim against it should be dismissed under the doctrine of discretionary immunity and that the nuisance and trespass claims should consequently be dismissed because the act underlying the claims was a discretionary function In March 1996 the superior court granted the states
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