Real Estate & Property Law

Federal Circuit: No Taking For Forest Fire

By Robert Thomas (inversecondemnation.com)

In a case we first analyzed here when the lawsuit was dismissed by the Court of Federal Claims, the U.S. Court of Appeals for the Federal Circuit in Cary v. United States, No. 2008-5022 (Jan. 16, 2009) held that the federal government was not liable in inverse condemnation for taking property damaged by Southern California wildfires in 2003.

The Federal Circuit affirmed the CFC's judgment on the pleadings, holding that the owners of the damaged property did not allege -- and could not show -- that the government intended to invade a property interest when it failed to control the "Cedar Fire," which began when "a deer hunter lost in the forest lit a signal fire to aid his rescue." Slip op. at 2. It was a tragedy of immense proportions as fifteen people were killed, more than 2,000 homes were lost, and 273,000 acres were burned. 

The property owners asserted that the fire was a "direct, natural, probable" result of two U.S. Forest Service polices which allowed fuel to build up in the forest, and allowed recreational users such as the hunter to enter.  Slip op. at 6. The court rejected the allegation, holding the property owners failed to plead the loss of property "would be the likely, foreseeable result of a policy of fire suppression and recreational use," only that the Forest Service knew of a risk, and taking a risk is not the same as making the result "probable." Slip op. at 7-8. 

The landowners analogized the fire to inverse condemnation flood cases where the government is held liable for a taking after it builds a dam which causes a river to rise. The court rejected the comparison:

The key difference between the flood cases and the instant controversy is that the policy of suppressing fires did not set the Cedar Fire in motion as the dams did the floods. Cf. Avery, 330 F.2d at 645. As the court in Cotton Land noted, further study would have predicted the flood, when it would occur, and where it would occur. 75 F. Supp. at 234. Here, as the landowners implied in their pleadings, for an injury resulting from the policy of suppressing fires in the [Cleveland National Forest] to occur, something had to ignite the fire. While the landowners pleaded that the government took the risk of a hunter or other recreational user starting a fire in the forest with its policy of welcoming such users, an actual ignition, not a risk, is what set the wildfire in the CNF. The hunter setting the fire was an intervening cause which broke any perceived chain of causation between the Forest Service's policies and the Cedar Fire.

Slip op. at 9. "The landowners would be correct that the government did not need to light the match to be liable, but to be a taking, it must have at least authorized supplying the fuel." Slip op. at 10. Finally, the Federal Circuit rejected the argument that the taking was permanent:

we cannot infer from the complaint that the fire prevented the rebuilding of infrastructure that would allow the landowners to reoccupy their property...and there is no allegation that the injuries prevent future use of the land, or that the fire will intermittently but inevitably recur. To satisfy the appropriation requirement, the preemption must be sufficiently permanent that it can be said that the government has exercised dominion over the property.

Slip op. at 14-15. Read the entire opinion here.

Full post as published by inversecondemnation on January 21, 2009 (boomark / email).