Petition for a Writ of Certiorari — United States v. Bloedel Donovan Lumber Mills

INDEX

Page

EE osc inv cucpudundh censsdansibccdnecctsanant 1

is ick ve uk sé cde bbs Eh beac PU eORN Modeeaad 1

NS Kb aw ec cad incaeeccvcsacecheuks cues 2

Contract provisions involved................... 2.00.00... 2

Se hes ene Gk bh ih baw ai MAb’ oeALRRR 2

Specification of errors to be urged.....................4.. 12

Reasons for granting the writ............................. 13

ES Sc xcue Nan tn oak SUN nbn HURSTON SKE Re cA Y Ga ESS Lem 22

Ss SARA reress Tie iter rarer rec er ayer 23

ETEK Cus cin cas ciba Fa see NWA Se bEW Es na BbSa Neca wees 25

CITATIONS

Cases:

Adams v. United States, 319 U. 8. 312................. 17

Ye Sp a SER 20

Bigby v. United States, 188 U. S.400.................. 20

Coz v. United States, 73 F. Supp. 1022................ 15

Edward’s Lessee v. Darby, 12 Whea*. 206............... 17

Farm Security Administration v. Herren, 165 F. 2d 554,

certiorari denied, April 19, 1948, No. 662, this Term... 16

Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380........ 19

Filor v. United States, 9 Wall. 45.................... 19

Frisorger v. Shepse, 251 Mich. 121................... 20

Galbraith v. Wheeler-Osgood Co., 123 Wash. 229........ 19

Great Northern Ry. Co. v. Oakley, 135 Wash. 279....... 18

Illinois Central R. R. Co. v. United States, 16 C. Cls.

RESPEC OF Mirage ap aterm aie ton meyer ieern yey Seen eT 20

Lehman v. Maryott & Spencer Logging Co., 108 Wash.

Leib teak Cent cel cen whdeadiramewe kN nba as Wee 15,18

McQuiston v. Shreveport Rys. Co., 12 La. App. 277..... 20

Norwegian Nitrogen Products Co. v. United States, 288

DES Seeks enh shia oh tinea (kak cwhie Reewan a 17

Paretta v. United States, No. 46395 (C. Cls.), decided

October 6, 1947, certiorari denied, February 9, 1948,

at hit ACG Cas Nae Gh Saeed ev dae Oe 15

Pearson v. United States, 267 U. 8. 423................ 21

Pine Hill Coal Co. v. United States, 259 U.S.191....... 16

Sandberg v. Cavanaugh Timber Co., 95 Wash. 556....... 18

Schillinger v. United States, 155 U. S. 163.............. 20

Stephens v. Mutual Lumber Co., 103 Wash.1........... 15, 18

Tempel v. United States, 248 U.S.121................. 20

United States v. Algoma Lumber Co., 305 U. S. 415..... 16

(1)

Il

Cases—Continued

United States v. American Trucking Ass’ns., Inc., 310

United States v. North American Co., 253 U. S. 330

Whiteside v. United States, 93 U. S. 247

Winn-Senter Construction Co. v. United States, No. 45999

(C. Cls.), decided January 5, 1948

Wood ¢ Iverson, Inc. v. Northwest Lum. Co., 138 Wash.

Federal Tort Claims Act (Act of August 2, 1946, ¢. 753,

Title IV, 60 Stat. 842, 28 U.S.C. 921, et seq.) :

Remington’s Wash. Rev. Stat. 1932, Supp., See. 5807

(See. 218 of Forestry Laws of Washington)

. Rev. Stat. 1932, Sees. 5784 and

_

Inthe Supreme Court of the Hnited States

Octoser Term, 1948

68

No. a

THE UNITED STATES, PETITIONER

v.

BLOEPEL DoNovaN LUMBER MILLS, A CORPORATION

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF CLAIMS

The Solicitor General, on behalf of the United

States, prays that a writ of certiorari issue to

review the judgment of the Court of Claims, en-

tered in the above-entitled case on December 1, 1947.

OPINION BELOW

The majority and dissenting opinions of the

Court of Claims (R. 18-50) are reported at 74 F.

Supp. 470.

JURISDICTION

The judgment of the Court of Claims was en-

tered on December 1, 1947 (R. 50). A motion for

new trial, seasonably filed, was denied on March 1,

1948 (R. 50). The jurisdiction of this Court is

invoked under the provisions of Section 3(b) of

the Act of February 13, 1925, as amended.

Salem,

2

QUESTIONS PRESENTED

1. Whether, under the standard slash disposal

provisions of a government timber sales agreement,

the United States contracts to reimburse a con-

tractor for damages caused him by the negligence

of the government officers in directing the setting

of slash fires.

2. Whether, assuming that the United States |

has so contracted, the instant claim is, nevertheless,

one ‘‘sounding in tort’’ over which the Court of

Claims lacks jurisdiction.’

CONTRACT PROVISIONS INVOLVED

The applicable contract provisions are set forth |

in Appendix B, infra, pp. 25-27. |

STATEMENT

Briefly summarized, the findings of the Court

of Claims follow:

By two substantially identical timber sales agree-

ments dated March 9, and April 8, 1940, respondent

Bloedel Donovan Lumber Mills agreed to purchase,

cut and remove certain standing timber owned by

the United States and growing on two separate

tracts of land of 14 and 80 acres respectively, in

the Olympic National Forest in the western part

of the State of Washington (R. 18-19). In ac-

cordance with the practice established for the pro-

1A subsidiary question presented is whether in the circumstances,

as found below, the damage to respondent’s property on September

21, 1942, located on land four miles beyond the area covered by the

burning plan, was a foreseeable result of the negligence of the gov-

ernment officers in directing that the slash fires be set on September

11, 1942.

—7_"

3

tection of the forest and other property in the

vicinity of logging operations, paragraph 16 of

each contract provided for the coatrolled burning

of the slash’ in order substantially to reduce the

hazard of uncontrolled or accidental fire (R. 20).

Respondent there agreed ‘‘to burn such of the

slash resulting from this sale as the Forest Super-

visor may require, at such times and in such man-

ner as the Forest Officer in charge shall specify”’

(R. 20).

Paragraph 16 further provides:

* * * For this purpose, the purchase™ [?. e.

respondent] agrees to furnish a sufficient num-

ber of men not exceeding 30 without cost to the

Government; Provided, That the purchaser

shall not be held responsible for damage to the

United States resulting from fires started to

dispose of slash, if such fires were set at times

and places specified by the Forest Officer in

charge, and if all the precautions required by

him were taken.

If required, slash from winter logging shall

be burned in the following spring, and slash

from summer logging shall be burned in the

following fall, and in no instance shall slash

burning be postponed except when weather

conditions, or other adequate reason, makes

slash burning impracticable in the judgment

of the Forest Officer, when it may be postponed

in writing until conditions are more favorable.

2 The term slash is understood in the logging industry as referring

to branches, tops and other material removed from the trees in the

production of logs (R. 20).

a 6 UE DY REAR Te

—

4

The purchaser shall so plan his logging

operations and make such arrangements for

the protection or removal of logging equip-

ment as may be necessary so that slash can

be burned periodically when required by the

Forest Officer. (R. 20-21.)

Both contracts originally required that all cutting

be completed by December 31, 1940, but were ex-

tended at respondent’s request to December 31,

1941 (R. 19). All the timber was in fact cut and

removed from the areas covered by the two con-

tracts by September 9, 1941 (R. 19).

As a result of these operations, large accumula-

tions of unburned slash were left in the cut-over

areas (R. 21). In addition, there was substantial

unburned slash in other areas in the same general

vicinity (R. 21). Under the direction of Forest

Ranger S. M. Floe, one of the Government’s au-

thorized representatives for the administration and

enforcement of the contracts here involved, a de-

tailed plan for the burning of slash was formulated

and agreed to by respondent on September 19, 1941

(R. 21-22). The plan, referring to Paragraph 16

of the timber sales agreements (Appendix B, infra

pp. 25-27), and Section 218 of the Forestry Laws

of Washington,’ related not only to burning of the

3 Section 218 (Remington’s Wash. Rev. Stat. 1932, Supp. Sec.

5807) declares that the inflammable debris created by logging, which

is likely to further the spread of fire, constitutes a fire hazard and

imposes the burden of abating the hazard on those responsible for

its creation. It further provides that upon the latter’s failure to

abate the hazard, the state supervisor of forestry may summarily

a

slash on 76 acres of the areas covered by the two

contracts here involved but also to the burning of

the slash on 337 acres of privately-owned con-

tiguous land, which respondent had also cut over

(R. 21-22). The slash in this area (Calawah area)

was continuous and was considered as a unit in

the firing plan (R. 22). The slash did not dry out

sufficiently to permit burning in 1941 (R. 22). In

December 1941, respondent applied for further ex-

tensions of the contracts until December 31, 1942,

for the sole purpose, all timber cutting having been

completed, to enable it to discharge its slash burn-

ing obligations (R. 19-20). The requested exten-

sions were granted (R. 19).

Before drying weather commenced in the spring

of 1942, the Washington Forest Defense Council

banned the burning of slash in western Washington

(R. 23). The ban was lifted on September 9, 1942

(R. 23). By that time‘ there were accumulated

5

cause the hazard to be abated, with the costs thereof to be borne by

the responsible party.

Under Sections 5784 and 5787 of the Washington law (Reming-

ton’s Wash. Rev. Stat. 1932), rangers and assistant rangers

of the United States Forest Service may be appointed ex officio

rangers in the Washington forestry service. Correlatively, govern-

ment forest rangers are authorized to accept appointments without

compensation as deputy state fire wardens, 36 C. F. R. 211.3. During

1942, the various government forest rangers here involved were

officially appointed rangers in the Washington Department of

Conservation and Development (R. 22).

4 September is normally, and has always been considered, the best

month for disposing of slash in that locality. If the slash is dry

enough to burn in early September, delay may render burning im-

possible until the following year, because once the slash becomes wet

at that time of the year, it does not dry sufficiently to permit burning.

On the other hand, imminence of fall rains in September reduces the

hazards of the fire getting beyond control,

6

in that general vicinity, from 1800 to 2000 acres of

unburned slash including the slash under the con-

tracts here involved (R. 23). On Tuesday, Sep-

tember 8, the day previous to the lifting of the ban,

a five-day extended weather forecast predicted

‘‘showers beginning of period to midweek further

showers coastal areas near end of week’’ (R. 28).

No daily forecast showing a change in that predic-

tion came to the attention of the government repre-

sentatives prior to noon Friday, September 11

(R. 29).

On September 10, Miller, the Assistant Forest

Supervisor, and Ranger Floe saw respondent’s

logging manager, Donovan, for the purpose of

getting him to agree that slash burning be com-

menced the next day (R. 24). Both Miller and

Floe, expecting rain in the immediate future

(R. 24), were anxious that the slash be burnt in

the next day or two since they believed that other-

wise the slash would not be burned that year, and

that if that happened the continuing accumulation

of unburned slash would increase the mounting fire

hazard (R. 24). They took to this meeting the

1941 Calawah plan and two similar plans covering

other areas in the same general vicinity, which had

also been cut over by respondent (R. 24). There

was some government-owned land included in one

of these areas, the Bear Creek area; the other area

consisted solely of privately-owned land (R. 24).

Donovan agreed to the execution of the plans, com-

_— f

7

mencing on the next day, upon the condition that

Wood, respondent’s woods superintendent, also

gave his approval (R. 24). Later that day, when

Miller and Floe asked Wood to arrange for burn-

ing slash at Calawah and Bear Creek the next

morning, Wood agreed without protest to burning

at Bear Creek (R. 24). He initially ovjected to

burning at Calawah on the ground that he did not

think it advisable to burn at that time,’ but, upon

urging, agreed to furnish crews of eight men each

to commence burning in each area, provided he first

could get permission from Donovan directly (R.

24).

When Floe arrived at Wood’s office on the morn-

ing of September 11, Wood, who had been unable

to get in touch with Donovan (R. 24-25), had pro-

vided only one crew of eight men, intended for the

Bear Creek operation (R. 24). The weather con-

ditions did not appear favorable to him, and he did

not want to take responsibility for the burning at

Calawah without orders from Donovan (R. 25).

Floe became indignant at Wood’s failure to honor

his agreement of the night before (R. 25). After

a heated discussion, Floe started to depart, inform-

ing Wood that as far as he was corcerned, unless

both areas were burned as planned, no burning at

5 Floe testified that Wood stated, as another reason for not wanting

to burn slash at Calawah, that he did not want to cut down the

logging crews, that he wanted as far as possible to keep logging

going so that the Bellingham Mill would not have to shut down

(R. 24). Judge Madden, in his dissenting opinion, points out that

the climatic conditions at Bear Creek and Calawah were the same

(R. 48).

8

all would be undertaken that year (R. 25). As

Floe was getting into his car to return to the

ranger station, Wood called him back and agreed

to send a crew to Calawah (R. 25). The eight-man

crew was split into two crews of four men with a

foreman in charge of each; one crew was sent to

Calawah, and the other to Bear Creek (R. 25, 30).

The fire at Calawah was set about noon on Sep-

tember 11° on private lands about four miles

northeast of the so-called ‘‘Burma Road”’ area in

accordance with the plan (R. 30). The govern-

ment lands included were in that part of the area

to be burned which was furthest from the Burma

Road (Exhibit G, Exhibit R. fol. p. 48). Respond-

ent’s timber and equipment, which was ultimately

destroyed and which gave rise to this proceeding,

was located in the Burma Road, where respondent

was cutting timber with men and logging equip-

ment (R. 32). The Burma Road was about three

to four miles southwest of the area intended to be

burned, and was separated therefrom by more

than two miles of old slash caused by timber cutting

® At 10:45 a. m. on September 11, the Weather Bureau issued a

special fire weather forecast which read:

Clear to scattered clouds rising temperature lower hu-

midity fuel moisture light to gentle easterly winds becoming

moderate tonight.

This forecast did not reach Floe until the following day. If he had

received it before the fires were started, he would have postponed

starting the fire but only until the immediately succeeding days. The

court found that the evidence does not establish that the ultimate

damage to respondent’s property would have been avoided had Floe

received this special forcast in time to postpone the setting of the

fires (R. 29-30).

_

9

in 1927 and 1928, and a stretch of approximately

one mile of green timber (R. 32-33).

The fire burned satisfactorily for four or five

days with four to six of respondent’s men con-

trolling it (R. 30-31). Each night, Floe received

reports on the fire’s progress and he and Wood, who

was in charge for respondent, made plans for the

next day as to the placement of men (R. 31). By

September 15, the fire had completely consumed

all slash included in the burning plan, and was

still three miles from the Burma Road (R. 31).

On that day, a pump was made available, the opera-

tion of which required the efforts of the five or six

men whom respondent had made available (R. 31).

Up to this time, the fire could have been stopped

from spreading, with a larger number of men

(R. 32).

On September 16, the fire had backed down

around the edge of an old railroad grade, which had

acted as a fire line protecting the area lying between

the Burma Road and the area covered by the burn-

ing plan, and was creeping into the old slash area

not intended to be burned (R. 32). Floe, in order

to stop the spread of the fire, sought to use a sub-

stantial trench left from earlier logging operations

as the basis of a fire line, and respondent, on Sep-

tember 17, furnished 35 men to establish the line

(R. 32). Most of respondent’s men and fire fight-

ing equipment were from that day until September

20 engaged in controlling the further spread of the

10

fire (R.32). By September 20, the fire was checked

and respondent and the forest officers felt that the

situation was in pretty good shape (R. 32). On the

morning of September 21, respondent’s crew and

equipment went back to cutting logs in the Burma

Road, which at that time was still more than a mile

away from the nearest fire in the old slash area

(R. 32-33).

About noon of September 21, however, the tem-

perature rose, the humidity dropped very suddenly

and dangerously, and the wind began to blow (R.

33). In the afternoon, a strong dry wind rose,

blowing in a direction from the old slash area

toward respondent’s operations (R. 33). By eve-

ning, the wind fanned some smouldering embers

into a blaze, and carried sparks and burning em-

bers for a distance of a mile across the intervening

stand of green timber (R. 33). Spot fires broke

out in the Burma Road (P. 33). Respondent’s

available forces were called into action and suc-

ceeded in controlling the fire after 2 or 3 days, but

only after a large amount of respondent’s equip-

ment and cut timber was damaged or destroyed

(R. 33). Quenching rains started on September 30

and put out the fire (R. 33). The actual ground

fire itself from the old slash area did not at any

time reach the Burma Road. When the fires were

finally extinguished, there was still an unburned

plot of ground a mile or more between the two areas

(Exhibit G, Exhibit R, fol. p. 408).

—_—_"

ll

The Court of Claims held, after hearing reargu-

ment,’ that Paragraph 16 of the timber sales agree-

- ments implied an obligation on the part of the

United States to use due care in specifying a time

when the slash should be burned (R. 40). Viola-

tion of that obligation, the court held, made the

United States liable for such damage as might rea-

sonably have been foreseen as the natural and

probable consequence thereof and claims arising

therefrom ‘‘being connected with and growing out

of a contract is within the jurisdiction of this

court’’ (R. 40). The court found that the govern-

ment officers had been negligent in ordering the

slash fires started on September 11, that this was a

breach of the contracts, and that the damage to re-

spondent’s property in the Burma Road on Sep-

tember 21, 10 days later, was the natural probable

consequence of this negligence (R. 40,46). Accord-

ingly, it entered judgment for respondent in the

amount of $70,798.46 for such damage (R. 50).

Judges Madden and Littleton dissented. In their

opinion, the setting of the fire was a joint venture

and not the act of the Government, inasmuch as the

vast percentage of the land included in the burning

plan was nongovernment land (R. 47). They point

out that as to that land, the government officers had

no authority whatever, and the respondent was

free to burn or not to burn the slash as it desired

™ Upon the initial argument, the court divided two to two. When

Judge Howell was appointed, reargument was ordered, and the

present three to two division resulted.

—

12

(R. 47-48). They also dissented on the further

ground that the ultimate damage on September 21

on land four miles beyond the area covered by the

burning plan was not a foreseeable consequence

from the setting of the fire on September 11 (R.

it SPECIFICATION OF ERRORS TO BE URGED

The Court of Claims erred:

1. In holding that under Paragraph 16 of the

timber sales agreements, the United States con-

tracts to exercise due care in directing the setting

of slash fires and to reimburse the contractor for

damages suffered by him as the result of a breach

of that obligation.

2. In holding that that obligation extends to the

present situation.

3. In failing to hold that the government officers

had no authority to require the burning of slash

on the nongovernment land included in the burning

plan.

4. In failing to hold that respondent had com-

plete discretion and control over the burning of

slash on the nongovernment land.

5. In holding that respondent did not freely and

voluntarily acquiesce in the setting of the slash

fires.

6. In holding that respondent’s claim is one

sounding in contract and not in tort and therefore

within the jurisdiction of the court.

a _

13

7. In holding that the damage to respondent’s

property on September 21, 1942, was the foresee-

able consequence of the setting of the slash fires on

September 11, 1942.

8. In entering judgment for respondent.

REASONS FOR GRANTING THE WRIT

1. The questions raised by the present case are

of general importance meriting review by this

Court. Paragraph 16 has, as the result of long

usage, become virtually a standard form provision

in timber sales agreements. It has always been

understood and. construed by the Forest Service,

the agency of the Government concerned with

these agreements, not to impose any liability on the

United States for damages suffered by the con-

tractor as the result of slash fires set at direction

of a government forest ranger. The contrary

holding below not only runs counter to this uniform

® The Government believes that when the situation is viewed pro-

spectively at the time the fires were set, and not by the exercise of

hindsight, the finding below that the government officers were negli-

gent in directing the setting of slash fires on September 11 (R. 46)

is contrary to the facts as proved in that court. September is the

normal month for the burning of slash in western Washington.

Heavy rains were needed ultimately to put out the fires and the gov-

ernment officers, on the basis of their fifteen years of experience in

that vicinity, anticipated that these rains would come reasonably

soon. The fact that September 1942 turned out to be the driest

September in that vicinity in many years accounts in some measure

for what happened, but does not make the action of the govern-

ment’s representatives negligent. Moreover, at the time the fires

were set, the substantial accumulation of slash in the general vicinity,

constituted a serious fire hazard threatening the remaining timber

in the area. This threat of uncontrolled conflagration had to be

weighed against the possibilities of damage resulting from the

14

construction but in so doing operates to impose

great potential and unanticipated liabilities on the

Government. For while Paragraph 16 can be

modified as to future contracts, the United States

would, under the decision below, be liable for such

damages on expired contracts on which the period

of limitations has not run, as well as for similar

damages arising out of the contracts still in effect.

The Forest Service estimates, based on the facts

that it enters into approximately 2100 agreements

containing this paragraph each year and that these

agreements typically ran for more than one year,

that there are in effect at present about 5000 of

these contracts, some of which have 10 or 15 years

torun. See Appendix A, infra, pp. 23-24. Under

each of these contracts, slash burning is required,

and, in each instance, there is a possibility, because

of the uncertainty of weather forecasting, that the

fire will get out of control, thereby opening the way

under the theory below for an action against the

Government for negligence in directing the setting

of the fire. The threat of such potential liability

would, moreover, seriously deter the taking of cal-

culated risks by government officers exercising the

discretion vested in them by Paragraph 16 to direct

setting of controlled fires. All these considerations indicate that

while the fires may not have been set under ideal conditions, the

situation on which the respondent’s witnesses and the court below

on its findings (R. 25-28, 44-46) focused their attenti»., the setting

of the fires at the time specified by the government officers was in the

cireumstances not negligent. However, despite our belief that the

findings below on this point are demonstrably erroneous, the Gov-

ernment accepts them for the purposes of this petition in order to

avoid burdening this Court with voluminous evidence relevant to that

issue.

15

that slash fires be set under other than ideal condi-

tions. Such reluctance would operate to increase

the risk of accidental fires and result in incalculable

damage to the Nation’s timberlands.

Review of the decision below is important from

other aspects as well. The extension of the implied

obligation to use due care to include slash burning

on even nongovernment land, although the govern-

ment officers involved were not authorized to as-

sume such obligation on behalf of the United States,

is another instance of the tendency recently mani-

fested by the Court of Claims to impose liability

on the United States for the unauthorized acts of

its agents. The Court of Claims recently imposed

such liability on the Government, in Paretta v.

United States, No. 46395, decided October 6, 1947,

certiorari denied, No. 482, this Term (February 9,

1948) ; Winn-Senter Construction Co. v. United

States, No. 45999, decided January 5, 1948; cf. Cox

v. United States, 73 F. Supp. 1022 (C. Cls.). The

cumulative effect of these holdings so departing

from this established and important principle will,

if not corrected, be to whittle down and eventually

to destroy that basic principle so far as the Court

of Claims is concerned and, pro tanto, to subject

the Government to unauthorized liabilities.’

® As we have indicated, “supra, note 1, p. 2, if a writ of certi-

orari is granted, the Government wishes also to urge that the hold-

ing below, that in the cireumstances here involved the ultimate

damage on September 21 was the reasonable and probable conse-

quence of setting the fires on September 11, constituted error. Cf.

Stephens v. Mutual Lumber Co., 103 Wash. 1; Lehman v. Maryott ¢

Spencer Logging Co., 108 Wash. 319.

—

16

2. The finding below of an implied obligation on

the United States to reimburse respondent for its

damages resulting from the negligent directions of

the government representatives as to the setting

of slash fires violates the established principle, that,

as stated by Mr. Justice Holmes ‘‘A liability in any

case is not to be imposed upon a government with-

out clear words.’’ Pine Hill Coal Co. v. United

States, 259 U. S. 191, 196; cf. United States v.

Algoma Lumber Co., 305 U. S. 415, 421; Farm

Security Administration v. Herren, 165 F. 2d 554,

562-563 (C.C.A. 8), certiorari denied, No. 662, this

Term (April 19, 1948). Moreover, the provisions

of Paragraph 16 itself rebut the existence of such

an obligation. The holding below fails to give

proper weight to that language of Paragraph 16

providing that respondent is not to be responsible

for damage resulting to property of the United

States from the burning of slash if it complies with

the conditions prescribed by the forest officer. This

provision clearly places the primary responsibility

for the burning, and for any damages resulting

therefrom, upon respondent. For plainly under-

lying this express provision is the assumption that

liability for damages caused by slash fires is

normally to be borne by respondent and that an

express provision was necessary to relieve respond-

ent of liability to the United States when it com-

plies with all conditions imposed by the Govern-

ment.

| ——

17

The Department of Agriculture advises that for

more than forty years, timber sales contracts have

contained substantially the slash burning provi-

sions here involved. During that period, slash

fires set under the supervision of the government

officers have got out of control and caused extensive

damage. Until the present case, the Government

has not reimbursed the contractor for such damage,

nor has any claim been made or action instituted

against the United States for recovery therefor.

Indeed, in all such instances, not only has the con-

tractor himself borne the loss, but he has also re-

imbursed the Government for the cost of labor and

equipment supplied by the Government to fight

the conflagration (Appendix A, infra, pp. 23-24).

This experience reveals a practical construction of

Paragraph 16 completely opposed to the holding

below, a practical construction which, we submit,

is entitled to great weight in determining the mean-

ing of Paragraph 16. Cf. Norwegian Nitrogen

Products Co. v. United States, 288 U. 8. 294, 315;

United States v. American Trucking Ass’ns., Inc.,

310 U. S. 534, 589; Adams v. United States, 319

U. 8. 312, 314-315; Edward’s Lessee v. Darby, 12

Wheat. 206, 210.

3. Even if it be assumed that the United States

did undertake to be liable for damages, that obliga-

tion, we submit, extended only to the burning of

slash on the land covered by the timber sales agree-

ments. There is nothing in the findings below to

18

support the extension by that court of the obliga-

tion to include slash burning on the 337 acres of

nongovernment land also included in the burning

plan. As to that land, the government officers, as

such, clearly had no authority under the contracts

to require the setting of the slash fires—a fact

which, as Judge Madden in his dissenting opinion

points out, the respondent knew (R. 47). Nor

were the obligations of United States extended to

include this land by the slash disposal plan, for

there is nothing in the plan itself to indicate that

there was any intention to impose this additional

obligation on the United States, or that the govern-

ment officers had any authority so to increase the

Government’s obligations. As a matter of fact,

these officers clearly had no such authority. See

Forest Service Reg. S-15, 36 C.F.R. 221.15.

Conversely, respondent owed no contractual obli-

gation to the United States to burn the slash on this

non-government land and the Government’s repre-

sentatives as such could not have compelled re-

spondent to burn it. Respondent, however, did have

the obligation and the sole responsibility, under

Washington law, to abate the fire hazard caused by

the existence of slash, which it had created by

cutting over the timber. See Remington’s Rev.

Stat., Wash. 1932, Supp. § 5807; Great Northern

Ry. Co. v. Oakley, 135 Wash: 279. This obligation

involved not only the setting of the fires but watch-

ing over them as well. Stephens v. Mutual Lumber

19

Co., 103 Wash. 1; Sandberg v. Cavanaugh Timber

Co., 95 Wash. 556; Lehman v. Maryott & Spencer

Logging Co., 108 Wash. 319."° And, as Judge Mad-

den points out (R. 48), respondent could have re-

fused to accede to the setting of the slash fires if it

had been unwilling to start the fires at the time and

place set by the government officers."

In these circumstances, the actions of govern-

ment officers in negligently directing that the slash

fires be started pursuant to the overall plan for the

burning of slash on nongovernment as well as

government-owned land—and, indeed, the fires

were first: started on nongovernment rather than

government land—were beyond the scope of their

authority under the contracts, and hence do not

operate to impose any obligation therefor on the

United States. Federal Crop Ins. Corp. v. Merrill,

332 U. 8. 380, 384; Filor v. United States, 9 Wall.

45; Whiteside v. United States, 93 U.S. 247; United

States v. North American Co., 253 U. 8. 330. More-

over, of the 443 acres included in the burning

plan, the 76 acres of government land were furthest

away from the Burma Road and consisted of two

10 In the instant case, respondent furnished only four or five men

to aid in the control of the slash fires. Paragraph 16 provided that

he was to furnish a sufficient number of men not exceeeding 30

without cost to the Government, and the Court below found that

up until September 17, the fire could have been stopped from

spreading with a larger number of men (R. 32).

11 In view of these considerations, the finding below that respond-

ent did not freely and voluntarily agree to the burning so as not to

be responsible for any of the consequences (R. 41-43) is without

foundation. Cf. Galbraith v. Wheeler-Osgood Co., 123 Wash. 229;

Wood & Iverson, Inc. v. Northwest Lum. Co., 138 Wash. 203.

20

small plots of land, the larger of which containing

60 acres was cut off from the Burma Road by a

ridge (Exhibit G, Exhibit R. fol. p. 48). Accord-

ingly, a fire restricted to the Government land

would in all probability have been easier to con-

trol with the manpower available, and would have

been less likely to spread to the area from which

it suddenly jumped to the Burma Road.

Since the burning plan covered both government

and nongovernment land, and respondent had com-

plete discretion over the 337 acres of nongovern-

ment land, Judge Madden construed the execution

of the plan as a joint venture. As so construed, it

follows that notwithstanding the contrary finding

below (R. 4-43), the decision to set the slash fires

was not the act solely of the Government but one in

which respondent freely and voluntarily partici-

pated. Hence the negligence in setting the fires

was as attributable to respondent as to the United

States. Respondent accordingly should be required

to bear at least as much responsibility for the

setting of the fires as the United States, and should

not be permitted to look to the United States for

reimbursement for the resulting damages to it.

Illinois Central R. R. Co. v. United States, 16 C.

Cls. 312, 332; Bates v. Tirk, 177 Wash. 286; Fri-

sorger v. Shepse, 251 Mich. 121; McQuiston v.

Shreveport Rys. Ce., 12 La. App. 277.

4. Since the burning plan pertained to 337 acres

of non-government land, over which the govern-

—

21

ment officers had no authority under the contracts

here involved, their requirement that the slash fires

be set was not, contrary to the court below (R. 40),

connected with, nor did it grow out of, the con-

tracts. For this reason, respondent’s claim being

based on the negligent actions of the government

officers sounds in tort, rather than contract, and

hence is beyond the jurisdiction of the Court of

Claims to hear and enter judgment against the

United States. Cf. Schillinger v. United States,

155 U. S. 163; Bigby v. United States, 188 U. S.

400; Tempel v. United States, 248 U. 8. 121; Pear-

son V. United States, 267 U. 8. 423.

The tortious nature of this proceeding is further

demonstrated by the fact that Paragraph 16 can-

not be stretched to impose a contractual duty of

due care to all of respondent’s property no matter

where located. Respondent’s property not located

on the land covered by the timber sales agreement

was no different from the property of third parties

similarly located. And if the property damaged

had belonged to a third party, there would have

been no breach of a contractual obligation to ex-

ercise due care, on which to base a suit in the Court

of Claims. It follows that the damage to re-

spondent’s property located off the land covered

by the contracts did not stem from a breach of

contract.”

12 The error in this phase of the case is not merely a jurisdictional

one; it permits the allowance of recovery where none appears per-

missible, since it is extremely doubtful whether the claim here in-

22

CONCLUSION

For the reasons stated, it is respectfully sub-

mitted that this petition for a writ of certiorari

should be granted.

Pur B. PERLMAN,

Solicitor General.

JUNE 1948.

volved is cognizable under the Federal Tort Claims Act (Act of

August 2, 1946, c. 753, Title IV, 60 Stat. 842, 28 U. S. C. 921, et seq.).

As shown in the text, the Government’s representatives, as such, had

no authority over the nongovernment land included in the burning

plan, and hence the setting of the slash fires on this land did not

occur while they were acting within the scope of their office or

employment. Section 410, 28 U. S. C. 931. Moreover, the deter-

mination of when and under what conditions to set the fires, even as

related to the government land involved, constituted the exercise of

a discretionary function or duty on the part of these representatives

within the express exemption of Section 421(a) of the Act (28

U. S. C. 943). In any ease, the fires here involved and the result-

ing damage occurred in September 1942, whereas the Act allows

suits only on claims accruing on and after January 1, 1945. Section

410, supra.

—_

23

APPENDIX A

United States Department of Agriculture

Office of the Solicitor

Washington, D. C.

May 21, 1948

Honorable Philip B. Perlman

Solicitor General of the United States

Department of Justice

Washington, D. C.

Dear Sir:

) Pursuant to an oral request from your office,

this letter will summarize information obtained

from the records of the Forest Service of this De-

partment with respect to the background of the

claim involved in the case of Bloedel Donovan Lum-

ber Mills v. United States, Court of Claims No.

46118.

Timber sale contracts of the Forest Service have

contained provisions for slash disposal sub-

stantially similar to those in suit for 40 years or

more. In recent years there has been an annual

average of 2,100 sales, from forests in the West,

under contracts including such provisions. Since

a large proportion of the contracts run for periods

in excess of one year, and, in some cases, for 10 to

15 years, there would be outstanding at any given

date from two to three times the number of timber

sale contracts made in any one year.

Extensive damage has resulted from the spread

of fires started by timber purchasers on national

forest land pursuant to slash disposal provisions

of timber sale contracts similar to those in suit.

In each instance the private operator has paid all

24

fire fighting expenses and has reimbursed the Gov-

ernment for the cost of labor and equipment

supplied by the Forest Service for fire fighting

purposes. Heretofore no claim has been made or

suit brought against the United States for damages

resulting from the spread of slash fires which were

set in compliance with the provisions of any con-

tract.

This Department is gravely concerned by the

effect of the decision in this case upon the interest

of the United States under thousands of timber

sale contracts containing a slash burning clause

substantially similar to that here involved. That

clause, as interpreted by the Court of Claims in

this case, would appear to make the Government

responsible to its timber purchasers for damages

resulting from their own slash burning operations

on sale areas where the forest officers act negli-

gently or pursuant to honest but erroneous judg-

ment in supervising such operations for the pur-

pose of protecting the interests of the United

tates. The financial burden to the Government

would be enormous.

Sincerely yours, J, .n3 A. DoyLe

. Associate Solicitor.

By direction of the Secretary

25

APPENDIX B

Pertinent contract provisions are as follows:

Period of Contract.—3. Unless extension of time

is granted, all timber shall be cut and removed

and the requirements of this agreement satisfied

on or before December 31, 1940.

10. As far as practicable all branches of logging

shall keep pace with one another, and in no instance

shall slash disposal be allowed to fall behind cut-

ting, except when the depth of snow or other

adequate reason makes proper disposal impractic-

able, when the disposal of slash may, with the

written consent of the Forest Officer in charge, be

postponed until conditions are more favorable.

Slash Disposal.—16. Slash shall be disposed of

as follows: The purchaser agrees to burn such of

the slash resulting from this sale as the Forest

Supervisor may require, at such times and in such

manner as the Forest Officer in charge shall specify.

For this purpose, the purchaser agrees to furnish

a sufficient number of men not exceeding 30 withoui

cost to the government: Provided, That the pur-

chaser shall not be held responsible for damage to

the United States resulting from fires started to

dispose of slash, if such fires were set at times and

places specified by the Forest Officer in charge,

and if all the precautions required by him were

taken.

Slash Burning.—If required, slash from winter

logging shall be burned in the following spring,

and slash from summer logging shall be burned

in the following fall, and in no instance shall slash

burning be postponed except when weather con-

26

ditions, or other adequate reason, makes slash burn-

ing impracticable in the judgment of the Forest

Officer, when it may be postponed in writing until

conditions are more favorable.

The purchaser shall so plan his logging opera-

tions and make such arrangements for the protec-

tion or removal of logging equipment as may be

necessary so that slash can be burned periodically

when required by the Forest Officer.

Fire Lines.—16a. Where necessary in the judg-

ment of the Forest Officer in charge, for the con-

trol of slash fires and the protection of any areas

on or adjacent to the sale area, fire lines shall be

constructed by the pvrchaser, provided that not

over one mile of line may be required on the entire

area covered by this agreement. On such fire lines,

which shall be constructed under the direction of

the Forest Officer in charge and shall not be re-

quired to be over 20 feet in width, all designated

living trees and all dead trees shall be felled and

inflammable material, including slash, reproduc-

tion and debris, shall be piled and burned by the

purchaser if practicable in the judgment of the

Forest Officer in charge.

Where deemed necessary in the judgment of

the Forest Officer in charge, a strip not to exceed

3 feet in width cut to mineral soil shall be cleared

on the exterior edge of the fire lines. The fire lines

shall be completed as to any unit of the cut-over

area, as required by the Forest Officer. Where

creeks are used as fire lines, logs, slash and debris,

sufficient to cause a fire danger shall be removed

and the channels so used.

aE

27

29. The term ‘‘officer in charge,’’ wherever used

in this agreement, signifies the officer of the Forest

Service who shall be designated by the proper

supervisor to supervise the timber operations in

this sale.

wv U. S. GOVERNMENT PRINTING OFFICE: 1948 790208 64