concurring.
Dillingham’s vicious animal ordinance and the administrative and lower court appellate proceedings are remarkably problematic. Because Haggblom has not demonstrated that these problems actually prejudiced her attempt to protect her dog, Muñeca, I concur in the result reached today, but write separately to call attention to deficiencies in the ordinance, its administrative enforcement, and the superior court appeal.
My comments are not driven by undue sympathy for Muñeca or her owner. The evidence permits an objective fact finder to find that Muñeca bit Simpson without provocation. Even though the bite was minor,1 the dog’s undisputed conduct places Muñeca squarely within the class of animals subject to Dillingham’s legitimate interest in public *1001safety. It also makes Muñeca subject to appropriate sanctions under any well-drafted ordinance.
But today’s opinion implies that there is nothing wrong with Dillingham’s ordinance, in the way Dillingham applied it to Muñeca, or in the way the superior court appeal proceeded.2 These implications require response.
The ordinance. Dillingham’s animal control ordinance contains sixteen chapters, only one of which is implicated here. Chapter 7 deals with “nuisance” animals,3 “dangerous” animals,4 and “vicious” animals.5 Muñeca was found to be a vicious animal. The ordinance does not define “vicious”6 as such, but classifies as vicious any animal that bites a person or animal without provocation (or gives an indication it “is able” to bite without provocation).7 Vicious animals are to be eu-thanized within forty-eight hours, following any necessary quarantine period.8 The issues at any appeal hearing for an animal that allegedly bit without provocation are strictly limited to whether the animal bit a person or another animal and whether the bite was without provocation.9
Its length may imply that Dillingham’s animal control ordinance is comprehensive. But comparison with the animal control ordinance we recently reviewed in West v. Municipality of Anchorage10 reveals that Dill-*1002ingham’s ordinance provides an inflexible and arbitrary process for dealing with animals that bite without provocation. The Anchorage ordinance contains five behavioral classifications, three of which distinguish between an animal that “bites,” an animal that inflicts an “aggressive bite,” and an animal that causes “serious physical injury.”11 It also lists eight types of exceptions.12 And in addition to euthanasia, it describes a broad range of lesser restrictions for three of the classification levels that presuppose unex-cepted biting.13
In comparison, Dillingham treats all animals inflicting unprovoked bites the same, classifying them as “vicious.”14 In theory it requires that they all be euthanized.15
Dillingham’s vicious animal ordinance has two particular deficiencies.
First, it provides no functional standards for distinguishing vicious animals from non-vicious animals. The ordinance does not distinguish between the horse that playfully or mistakenly nips someone giving it a carrot and the dog that escapes its yard and mauls a child. It does not distinguish between animals indisputably vicious and those indisputably not. It contains no standards that tell enforcers how to administer the ordinance in practice; it likewise does not tell those subject to enforcement how to determine whether their animal is vicious and exposed to euthanasia. This means owners have no announced standards to guide them in deciding whether and how to dispute a viciousness classification and oppose the animal’s destruction. Likewise, the ordinance contains no standards distinguishing those animals subject to the city’s legitimate interest in safety from those that are not. It similarly contains no standards distinguishing those animals requiring the most severe sanction from those for which destruction is not needed, and for which destruction is not a rational or permissible governmental response.
An animal whose bite is unprovoked is vicious, per DMC 07.07.030(A). But there is no standard for determining provocation. Is throwing a stone or pulling an animal’s tail provocation? Is a sudden move to pat the head of a growling dog or a skittish horse? Is teasing a dog with a biscuit or a horse with a carrot? Does it matter whether the victim is a child or an adult? Provocation sufficient to excuse a minor nip might not be sufficient to excuse a mauling. Determining whether there was provocation may be particularly difficult if one animal bites another, as when a chance meeting escalates from mutual sniffing to mutual biting.
Second, the ordinance fails to take into account the severity of the bite. There is no rational reason why the ordinance requires the same penalty—euthanasia—-for the dog that nips and the dog that mauls.
As we will see, there is evidence the city does draw distinctions when it enforces the ordinance: its officers decide whether an animal is vicious and whether a sanction other than death is possible. But they do so without any published standards to be found in the ordinance and without any rational standards explained in this case.
Haggblom challenges the ordinance as vague. I agree, to the extent viciousness depends on whether an animal acted without provocation. But the ordinance is not otherwise vague: it is specific in describing the animals to which it applies (all those that bite or might bite); it treats all animals that bite the same. This sweeping specificity does not save its impermissible scope. Even if they are unprovoked, it is arbitrary to treat all biting animals the same.
Enforcement. Haggblom complains of arbitrary enforcement; she unsuccessfully sought to conduct discovery on the topic.
Her arbitrary enforcement complaint seems well-taken. The city, in enforcing the ordinance, appears to distinguish on an ad hoc basis between animals its officers eonsid*1003er vicious and those they do not.16 The latter are apparently not cited at all.17 The former are theoretically subject to the only sanction the ordinance permits: death. Despite this ostensible lack of discretion in choosing a remedy, there is evidence enforcement officers do exercise discretion as to sanction. They decide whether death is required, or whether to allow the owner to ship the animal out of the city. In choosing to apply the ordinance to some animals that have bitten a person and not to others, the city acts arbitrarily,18 because the ordinance confers no enforcement discretion to the city and contains no standards by which enforcing officers can make reasoned decisions to apply sanctions to one animal that has bitten and not to another.19
Perhaps in practice city officers have accurately distinguished between animals that need to be regulated and those that don’t. And perhaps they have also accurately decided which animals might, like thieves in Nineteenth-Century England, be offered transportation to distant shores as an alternative to death.20 But there is no assurance the enforcement classification for any given animal is valid, because the ordinance contains no standards for determining the validity of the classification. As a result, enforcement officers, animal owners, those trying to decide whether to dispute administrative enforcement, those appealing administrative decisions, and appellate judges are all without guidance. Even assuming that the only rights implicated are the owners’ property rights, arbitrary interference with • those rights is likely.21 It is no consolation that some dogs may, by meeting unspecified criteria, avoid death if they are offered “blue tickets” out of the city.22 Such an offer may spare an animal’s life, but makes it impossible for the owner who remains in Dillingham to exercise most property rights, let alone any arguably more-important rights arising out of the animal’s companionship.
It is also probable some animals will be euthanized that could, if their owners appealed, satisfy the city’s unpublished standards for banishment: the absence of published standards makes it hard for an owner to decide rationally whether the cost of defending the animal is worth the risk the defense will be fruitless. The absence of standards *1004particularly impedes those owners financially or intellectually least able to defend their animals or find them new and distant homes if the defense fails.
As it turns out, the danger of arbitrary enforcement does not help Haggblom: there is no reasonable dispute that Muñeca is validly subject to regulation; the evidence permitted a finding that Muñeca was not provoked and Haggblom produced no contrary evidence; Haggblom has not argued that the bite was not serious enough to justify euthanasia or banishment; and Chief Thompson’s offer of a blue ticket out of Dillingham removes the threat of the most serious possible consequence, unjustified euthanasia. Nor has Haggblom asserted that she is financially unable to defend Muñeca or save her life by shipping her away.
Appeal. Haggblom argues that the procedure followed in her superior court appeal deprived her of the opportunity to conduct discovery and present expert testimony. Haggblom correctly asserts that the superior court converted the preliminary injunction hearing into a de novo trial on appeal without giving advance notice of its intention. That procedure was problematic because consolidation under Alaska Civil Rule 65(a)(2) “must be tempered by the due process principle that fair notice and an opportunity to be heard must be given the litigants before the disposition of a case on the merits.”23
In my view, it was error to treat the preliminary injunction hearing as a trial without giving prior notice of that intention. But Haggblom has not demonstrated that this error was prejudicial. Her lawyer stated at the hearing that “we’ve probably put in almost all of the evidence that would come in in this case and if we’re—it was listed as a preliminary injunction hearing. We would ask for a preliminary injunction and eventually we’ll be asking that the ordinance be set aside.” And she did not seek reconsideration with a proffer of relevant evidence. She was not obliged to seek reconsideration to reserve the issue, but she was obliged to let the superior court know that she objected to resolving the case on the merits without being able to offer relevant evidence. Had she made that objection, accompanied by either an offer of proof or an explanation how discovery would be relevant to Muneea’s case, the error here would have required reversal. But absent any such objection, we have no basis for holding that this procedural error harmed her.
Expert evidence. Today’s opinion states that no animal behavior expert who was not present when Muñeca bit Simpson could have offered evidence that would have made a difference in the trial court’s conclusions.24 Some readers might read this statement to express an opinion that an expert could offer no relevant information. But an expert in animal behavior who was not present might, by responding to hypothetical questions, offer relevant opinions regarding the animal’s alleged viciousness. That topic would also be relevant to a challenge to the validity of the ordinance on the theory it arbitrarily treats non-vicious animals as vicious. An expert could also discuss what circumstances would amount to provocation for a non-vicious animal. And after examining the animal, an expert could also offer opinions about its potential for unwarranted and unprovoked biting, evidence tending to show whether the bite was in fact provoked. This evidence would also be relevant to a contention euthanasia is not a rational sanction for the subject animal. Haggblom did not offer the evidence for any of these purposes, but that does not mean an expert in such a case could say nothing that might affect the outcome.
Conclusion. The undoubted legitimacy of Dillingham’s interest in preventing unprovoked dog bites is subject to requirements of fair notice and an opportunity to be heard. The deficiencies in the ordinance, its enforce*1005ment, and the appeal would require reversal if they were not deemed harmless.
. CSO Gary Peters described the bite as "a small puncture wound just above the middle finger knuckle that just broke the skin, a¿id there was some bruising there too." CSO Peters’s incident narrative states that "[he] asked if [Simpson] was going to seek medical assistance] [and Simpson] said that she didn’t think it was that bad."
. See Op. at 997-98, 998-1000.
. Dillingham Municipal Code (DMC) 07.07.010 (2006).
. DMC 07.07.020.
. DMC 07.07.030 provides in part:
A. Any animal who bites a person or animal without provocation, or which, by its actions, gives indication that it is able to bite any person or animal without provocation, shall be deemed vicious.
B. Any animal who bites a person or animal without provocation and is currently vaccinated, shall be immediately quarantined for no less than ten days at the expense of the owner. A date of euthanasia for the animal shall be scheduled for no less than forty-eight hours after completion of quarantine.
C. Any animal who bites a person or animal without provocation and is unvaccinated, shall be immediately impounded and quarantined for no less than ten days at the expense of the owner or keeper, and the owner or keeper may be found in violation of Chapter 7.13, subject to fees and/or fines established within Sections 7.16.010 and 7.16.020, and to comply with Chapter 7.14. Before completion of quarantine, the owner or keeper will be given a written notice of the date of euthanasia. A date of euthanasia shall be scheduled for no less than forty-eight hours after completion of quarantine.
D. Vicious animals shall be euthanized, as established in Section 7.11.010, by the community service officer or agent not less than forty-eight hours after providing actual written notice to the owner or keeper of the dog, by hand delivery to the owner or keeper, or by posting at the last known residence of the owner or keeper. Such notice shall advise the owner or keeper of the following:
1.Planned time of euthanization of the animal;
2. That the animal will be impounded and/or quarantined immediately upon issuance of notice;
3. That the owner or keeper has an opportunity to be heard before the city manager, or the city manager's designee, should they wish to appeal the community service officer’s or agent's determination that the animal is vicious.
. DMC 07.02.010 defines “nuisance animal” and more than thirty other words or terms, but not “dangerous animal” or “vicious animal."
. DMC 07.07.030(A).
. DMC 07.07.030(B)-(C).
. DMC 07.07.030(E). Subsection E states:
The issues to be considered at any appeal hearing shall be limited to the following:
1. Whether the animal bit a person or domestic animal;
2. Whether the animal caused damage to property;
3. Whether the bite or damage was without provocation;
4. Whether the animal by its actions, gave indication that it is able to bite any person or animal without provocation.
. West v. Municipality of Anchorage, 174 P.3d 224 (Alaska 2007) (discussing Anchorage Municipal Code (AMC) 17.40.010-.100, which provides five levels of animal behavior classification and corresponding animal restrictions ranging from leashing requirements to euthanasia); AMC 17.40.020(A)(4) (Level four behavior "is established if any of the following occur: a. An unrestrained animal inflicts an aggressive bite or causes physical injury to any human; or b. An unrestrained animal kills a domestic animal that is restrained; or c. An animal, regardless of whether it is restrained, for the second time injures or kills a domestic animal.”).
. AMC 17.40.020(A)(2)-(5).
. AMC 17.40.020(B).
. AMC 17.40.040.
. DMC 07.07.030(A).
. DMC 07.07.030(B)-(C).
. CSO Peters testified that his animal control training included "some ride-alongs with the sergeants showing [him] what to do and going over the city ordinances and reading them” and that he "attended National Animal Control Association classes.” Because DMC 07.07.030 does not contain standards for administration, effective application of this training to animal behavior classification seems impossible.
. DMC 07.07.030(C)-(D) (owner of vicious animal to be provided notice of euthanasia date); DMC 07.07.020(D) (community service officer may issue citation or warning to owner of dangerous animal).
. Under DMC 07.07.030 an animal that is deemed vicious must be euthanized. But it appears that Chief Richard Thompson sometimes offers owners alternatives to euthanasia. Chief Thompson testified in superior court that Muñe-ca would not be euthanized if Haggblom shipped Muñeca out of Dillingham:
Q ... Did you talk to her about the option of having the dog shipped out of Dillingham?
A Yes, ma'am.
Q And in your mind, that was a possible option for [Muñeca] as a result of your....
A That was one possible option, yes.
Chief Thompson did not give a reason for deviating from the only sanction required or permitted by the ordinance and he did not describe what other "possible” options to euthanasia are available.
. Ending this exercise of discretion will not save the ordinance, which is arbitraiy in requiring euthanasia for all animals that inflict unprovoked bites.
. See generally Schick v. Reed, 419 U.S. 256, 261-62, 95 S.Ct. 379, 42 L.Ed.2d 430 (1974) (discussing banishment as punishment); see also United States v. Blake, 89 F.Supp.2d 328, 341-43 (E.D.N.Y.2000) (providing historical discussion of criminal rehabilitation and noting England banished prisoners to "the American Colonies and ... Australia”); Robert Hughes, The Fatal Shore: The Epic of Australia's Founding (1987).
. See generally Susan J. Hankin, Not a Living Room Sofa: Changing the Legal Status of Companion Animals, 4 Rutgers J.L. & Pub Pol’y 314, 343 (2007) (noting “courts have actually been willing to entertain the idea that animals are in a different legal category from inanimate property”).
. See generally Mike Doogan, How To Speak Alaskan 14 (“BLUE TICKET-A one way passage out of Alaska, awarded in earlier times to suspected criminals and other undesirables by the authorities.”).
. 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2950 (2d ed.1995) (citing Pughsky v. 3750 Lake Shore Drive Coop. Bldg., 463 F.2d 1055 (7th Cir.1972)). This treatise suggests that "[a]l-though each case will depend on its own circumstances, the ten-day notice requirement of Rule 56 for summary judgment motions might be taken as suggestive of the minimum amount of time necessary to permit a litigant to prepare a showing upon which the final outcome of the case may depend.” Id.
. Op. at 1000.