January 06, 2021

Fire Liability Imbalances—An Issue Worth Revisiting?

Lawson Fite and David Bechtold

In August 1951, sparks from a railroad car ignited National Forest land in western Washington’s Olympic Peninsula. Through a combination of negligent land management that allowed fuels to build up and firefighting mistakes, the Forest Service allowed the fire to spread and significantly damage private forestlands. When those owners sued for negligence under the then–newly minted Federal Tort Claims Act, 28 U.S.C. § 2674 (FTCA), the district court dismissed the action and the Ninth Circuit affirmed. The Supreme Court reversed, holding that provisions of the FTCA, “given their plain natural meaning, make the United States liable to petitioners for the Forest Service’s negligence in fighting the forest fire if, as alleged in the complaints, Washington law would impose liability on private persons or corporations under similar circumstances.” Rayonier Inc. v. United States, 352 U.S. 315 (1957). Most states do impose such liability at some level.

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