B-163089, OCT. 19, 1970

B-163089, OCT. 19, 1970

FIRE PREVENTION SERVICES - GOVERNMENT OWNED LANDS DECISION MODIFYING PREVIOUS DENIAL OF CLAIM FOR $21,577.20 AGAINST THE GOVERNMENT REPRESENTING EXPENSES INCURRED FOR FIRE FIGHTING SERVICES RENDERED IN CONNECTION WITH GOVERNMENT OWNED LAND WITHIN THE DWORSHAK DAM AND RESERVOIR PROJECT, CLEARWATER COUNTY, IDAHO. WHERE THERE IS A QUESTION OF GOVERNMENT NEGLIGENCE, THE CLAIM WOULD SOUND IN TORT AND UNDER FEDERAL TORT CLAIMS ACT, EXCLUSIVE JURISDICTION OVER TORT CLAIMS IS VESTED IN THE HEAD OF THE FEDERAL AGENCY INVOLVED SUBJECT TO APPEAL TO THE DISTRICT COURTS OF THE UNITED STATES; HOWEVER, WHERE CLAIMANT WAS UNDER CONTRACTUAL DUTY TO PROVIDE PERSONNEL, FACILITIES, EQUIPMENT FOR THE PREVENTION AND SUPPRESSION OF FIRES ON ALL PROJECT LANDS EXCEPT OPERATING AREA, THE FIGHT AGAINST FIRES WITHIN THE OPERATING AREA WAS FOR THE BENEFIT OF THE ASSOCIATION TO PREVENT THE SPREAD OF FIRES TO LANDS OF ITS MEMBERS AND OTHER LANDS IT WAS OBLIGATED TO PROTECT, BUT IT ALSO BENEFITED THE GOVERNMENT BY HELPING TO PREVENT THE DISTRUCTION OF ADDITIONAL FOREST LANDS- WHICH MIGHT REDUCE THE GOVERNMENT'S TORT LIABILITY IF NEGLIGENCE IS LATER FOUND. THEREFORE, THE PORTION OF THE CLAIM ATTRIBUTABLE TO FIRE SUPPRESSION SERVICES WITHIN THE OPERATING AREA, IF THIS CAN REASONABLY BE DETERMINED, MAY BE PAID BY THE CORPS OF ENGINEERS.

TO CLEARWATER-POTLATCH TIMBER PROTECTIVE ASSOCIATION:

YOUR LETTER OF AUGUST 17, 1970, TO SENATOR JORDAN, IN EFFECT, REQUESTS A REVIEW OF OUR CLAIMS DIVISION SETTLEMENT OF JULY 23, 1970, DISALLOWING YOUR CLAIM OF $21,577.20, AGAINST THE GOVERNMENT. THE CLAIM REPRESENTS EXPENSES INCURRED BY YOUR ASSOCIATION FOR FIRE FIGHTING SERVICES RENDERED FROM JUNE 27, 1968, THROUGH JULY 11, 1968, IN CONNECTION WITH GOVERNMENT- OWNED LANDS WITHIN THE DWORSHAK DAM AND RESERVOIR PROJECT, IN CLEARWATER COUNTY, IDAHO. SPECIFICALLY, THE CORPS OF ENGINEERS REPORTS THE CLAIM AS BEING FOR SUPPRESSION OF FIRES ON LANDS BEING CLEARED FOR DWORSHAK RESERVOIR, NORTH FORK CLEARWATER RIVER, IDAHO, ON PROJECT LANDS NOT SCHEDULED FOR CLEARING, AND ON GOVERNMENT, STATE, AND PRIVATE FOREST LANDS OUTSIDE OF THAT PROJECT.

THE PERTINENT FACTS AND CIRCUMSTANCES CONCERNING THE CLAIM AS DISCLOSED BY THE RECORD BEFORE US ARE SET FORTH BELOW.

IT APPEARS THAT DISCUSSIONS REGARDING RESPONSIBILITY AND PAYMENT COVERING FIRE PROTECTION OF GOVERNMENT-OWNED LANDS ASSOCIATED WITH THE DWORSHAK PROJECT, AND SURROUNDING LANDS NOT OWNED BY THE GOVERNMENT, RESULTED IN EXECUTION OF CONTRACT NO. DA-45-164-CIVENG-64-308, DATED MAY 15, 1964, BETWEEN THE UNITED STATES OF AMERICA, ACTING THROUGH THE CORPS OF ENGINEERS, AND THE CLEARWATER TIMBER PROTECTIVE ASSOCIATION AND CONTRACT NO. DACW-68-68-C-0078, ENTERED INTO ON APRIL 25, 1968 (APPARENTLY RETROACTIVE TO APRIL 25, 1968), AND SIGNED BY YOUR ASSOCIATION, THE STATE OF IDAHO, AND THE UNITED STATES ON DECEMBER 20, 1968, JANUARY 27, 1969, AND APRIL 9, 1969, RESPECTIVELY. THE STATED PURPOSE OF BOTH CONTRACTS IS FOR THE "PRESUPPRESSION FIRE PROTECTION FOR GOVERNMENT-OWNED FOREST LANDS, DWORSHAK DAM AND RESERVOIR."

THE CONTRACT OF MAY 15, 1964, REQUIRES THE ASSOCIATION TO PROVIDE GROUND PATROL UNITS, SUPPLEMENTED BY NECESSARY AIR SURVEILLANCE, EXPERT ADVICE AND CONSULTATION TO ASSIST THE GOVERNMENT IN ESTABLISHING AND MAINTAINING PRESUPPRESSION FIRE PROTECTION MEASURES ON GOVERNMENT-OWNED LANDS; TO PATROL AREAS WITHIN THE DWORSHAK DAM PROJECT KNOWN AS "OPERATING AREAS," FURTHER DEFINED AS THOSE AREAS WHERE CLEARING AND BURNING OPERATIONS ARE UNDERWAY, AND TO FURNISH PATROL SERVICES DURING MAY THROUGH NOVEMBER. THE CONTRACT DATED APRIL 25, 1968, REQUIRES THE ASSOCIATION TO PROVIDE PERSONNEL, FACILITIES, EQUIPMENT, AND OPERATION AND MAINTENANCE THEREOF NECESSARY FOR THE PREVENTION AND SUPPRESSION OF FIRES ON ALL PROJECT LANDS EXCEPTING THOSE INCLUDED WITHIN DESIGNATED AREAS IN WHICH THE GOVERNMENT OR ITS CONTRACTORS CONDUCT CLEARING AND BURNING ACTIVITIES. SUCH EXCEPTED LANDS ARE REFERRED TO AS "OPERATING AREAS."

IT APPEARS THAT FIRES ORIGINATED ON JUNE 27, 1968, IN TWO SEPARATE PLACES IN THE "OPERATING AREAS" WHEREIN GOVERNMENT CONTRACTORS WERE ENGAGED IN CLEARING RESERVOIR LAND AND THAT BY REASON OF HIGH WINDS THE FIRES ON THE PROJECT LAND SPREAD OVER A WIDE AREA THAT INCLUDED LANDS INSIDE AND OUTSIDE THE PROJECT. THE FIRES EVIDENTLY WERE EXTINGUISHED IN ONE AREA ON JULY 2, 1968, AND IN THE OTHER AREA ON JULY 11, 1968.

YOUR LETTER ADDRESSED TO THE DISTRICT ENGINEER, WALLA WALLA, WASHINGTON, ON APRIL 24, 1969, CONCEDES THAT THE FIRES OCCURRED IN THE "OPERATING AREAS" WHICH ARE EXCLUDED FROM THE PROTECTIVE AGREEMENT, CONTRACT DACW68- 68-C-0078; AND THAT CONTRACT DA-45-164-CIVENG-64-308, COVERING ONLY PRESUPPRESSION FIRE SERVICES, IS NOT APPLICABLE TO PAYMENT FOR FIRE SUPPRESSION SERVICES. THE BASIS OF YOUR CLAIM WAS PREDICATED ON THE FORESTRY LAWS OF THE STATE OF IDAHO INCLUDING IDAHO CODE SECTION 38-107.

OUR SETTLEMENT ACTION DENIED THE CLAIM FOR THE FOLLOWING REASONS: (1) THE FORESTRY LAWS OF IDAHO ARE NOT CONTROLLING INSOFAR AS THE FEDERAL GOVERNMENT IS CONCERNED; (2) THE SERVICES WERE RENDERED VOLUNTARILY; (3) THE STATE FORESTER WAS OBLIGATED TO PROVIDE THE FIRE FIGHTING SERVICES; (4) THE CIRCUMSTANCES INVOLVED PRECLUDE ANY PRESUMPTION THAT COMPENSATION WOULD BE PAID FOR THE SERVICES IN QUESTION.

YOU STATE THAT WE DENIED THE CLAIM FOR SEVERAL REASONS, SOME OF WHICH YOU SAY MAY BE VALID AND OTHERS WHICH ARE QUESTIONABLE. YOU POINT OUT THAT BASICALLY WE HAVE TAKEN THE POSITION THAT FIRE SUPPRESSION WAS NOT COVERED BY THE CONTRACT COVERING THE OPERATING AREAS AND THAT THE FEDERAL GOVERNMENT IS NOT SUBSERVIENT TO STATE LAWS PERTAINING TO FIRE CONTROL. YOU SPECIFICALLY TAKE ISSUE WITH THAT PORTION OF THE ADMINISTRATIVE REPORT FURNISHED US BY THE CORPS OF ENGINEERS WHICH, YOU STATE, INDICATES THAT THERE WAS NO NEGLIGENCE ON THE PART OF THE CONTRACTOR AND THAT THE ARMY DID NOT REQUEST HELP FROM YOUR ASSOCIATION. ACCORDINGLY YOU DISAGREE WITH THAT PART OF OUR SETTLEMENT BASED ON THOSE PORTIONS OF THE ADMINISTRATIVE REPORT FOR THE FOLLOWING REASONS (QUOTING FROM YOUR LETTER):

"(1) THE GOVERNMENT CONTRACTORS WERE BURNING WITH A PERMIT BUT THE FIRE ESCAPED THEIR OPERATION. HIGH WINDS WERE PARTIALLY RESPONSIBLE FOR THE ESCAPE.

"(2) THE STATION LOG AT OUR OROFINO OFFICE (C.-P.T.P.A.) ON JUNE 27, 1968, HAS RECORDED THAT MR. MOORE, THE ASSISTANT PROJECT ENGINEER, CALLED FOR HELP ON THIS FIRE.

"(3) DURING THE WINTER PRIOR TO THIS FIRE, THE CORPS OF ENGINEERS CREATED AN IMPOSSIBLE FIRE CONTROL SITUATION IN THE POOL AREA BY DIRECTING OR ALLOWING THE CLEARING CONTRACTORS TO FALL TIMER BETWEEN ELEVATION 1605' AND ELEVATION 1440' WITHOUT CONCURRENT CLEANUP OF MATERIAL. THIS HAZARD WAS CREATED DURING THE PERIOD THAT OUR PATROL CONTRACT WAS INACTIVE AND CLEANUP OF HAZARDOUS MATERIAL WAS NOT IN ACCORDANCE WITH THE CLEARING CONTRACT OR GOOD FORESTRY PRACTICES. THE HAZARDOUS FUELS WHICH WERE CREATED DURING THE WINTER MONTHS HAD A SEVERE EFFECT ON THE RATE OF SPREAD OF THIS FIRE AND SUBSEQUENT CONTROL ACTION.

"THE COST OF SUPPRESSION OF THESE FIRES HAS BEEN PAID BY THE ASSOCIATION WHICH IN TURN IS PAID BY THE STATE, PRIVATE INTERESTS AND OTHER FEDERAL AGENCIES."

THE STATEMENT IN THE CERTIFICATE OF SETTLEMENT TO THE EFFECT THAT THE STATE FORESTER WAS OBLIGATED TO FURNISH OR PROVIDE FIRE PROTECTION ON FEDERAL FORESTS LANDS IN IDAHO IS INCORRECT. SEE B-163089, FEBRUARY 8, 1968. HOWEVER, THE FACT THAT THE STATE FORESTER OF IDAHO IS NOT OBLIGATED TO FURNISH FIRE PROTECTION ON FEDERAL FOREST LANDS DOES NOT NECESSARILY REQUIRE THE CONCLUSION THAT THE CLAIM OF THE ASSOCIATION IS FOR PAYMENT IN THE INSTANT CASE.

AS TO THE QUESTION OF NEGLIGENCE, WE WOULD LIKE TO POINT OUT THAT ANY CLAIM AGAINST THE GOVERNMENT BASED UPON THE NEGLIGENCE OF GOVERNMENT CONTRACTORS WOULD BE A CLAIM SOUNDING IN TORT. UNDER THE FEDERAL TORT CLAIMS ACT, AS AMENDED, 28 U.S.C. 2671-2680, EXCLUSIVE JURISDICTION OVER TORT CLAIMS IS VESTED IN THE HEAD OF THE FEDERAL AGENCY INVOLVED- IN THIS CASE THE SECRETARY OF THE ARMY--(EXCEPT THAT AWARDS IN EXCESS OF $25,000 MUST BE APPROVED BY THE ATTORNEY GENERAL OR HIS DESIGNEE), SUBJECT TO APPEAL (BY THE CLAIMANT) TO THE DISTRICT COURTS OF THE UNITED STATES. OUR OFFICE THEREFORE, WOULD HAVE NO JURISDICTION WITH RESPECT TO THE SETTLEMENT OF TORT CLAIMS INVOLVING ANOTHER FEDERAL AGENCY. THUS, THE CLAIM INVOLVED HERE, IF BASED ON NEGLIGENCE IMPUTABLE TO THE GOVERNMENT, WOULD BE FOR CONSIDERATION BY THE SECRETARY OF THE ARMY UNDER THE FEDERAL TORT CLAIMS ACT. IN THIS CONNECTION, HOWEVER, SEE PEOPLE OF THE STATE OF CALIFORNIA V UNITED STATES, 307 F. 2D 941 (1962) AND STATE OF OREGON ET AL. V UNITED STATES, 308 F. 2D 568 (1962), TO THE EFFECT THAT AN ACTION (OR CLAIM), FOR EXPENSES INCURRED IN SUPPRESSING A FIRE WHICH STARTED OR SPREAD DUE TO THE NEGLIGENCE OF THE GOVERNMENT, IS NOT AN ACTION (OR CLAIM) FOR MONEY OR DAMAGES FOR INJURY OR LOSS OF PROPERTY WITHIN THE FEDERAL TORT CLAIMS ACT AND, HENCE, CANNOT BE MAINTAINED UNDER SUCH ACT.

AS TO WHETHER THE CORPS OF ENGINEERS CALLED FOR HELP ON THE FIRE, IT IS STATED IN A MEMORANDUM DATED AUGUST 13, 1969, FROM THE RESIDENT ENGINEER, DWORSHAK DAM TO DISTRICT COUNSEL THAT:

"1. THERE WAS NO GOVERNMENT EMPLOYEE ON SITE WHEN THE KORACK FIRE BROKE OUT OF CONTROL. THE WORK OF THIS FIRE WAS CALLED TO THE RESIDENT ENGINEER'S OFFICE BY THE ASSOCIATION DISPATCHER AT OROFINO. APPROXIMATELY THE SAME TIME (1615 HOURS OR - ) WORD WAS RECEIVED BY RADIO FROM THE GOVERNMENT INSPECTOR IN THE FIELD THAT THE MURPHY FIRE WAS OUT OF CONTROL.

"2. MR. ROBERT H. MOORE AND G. L. HAMMAR WENT TO THE KORACK FIRE ON THE RIGHT BANK OF THE RIVER. THE ASSOCIATION WAS AT WORK COMBATING THE FIRE AND HAD ENLISTED THE AID OF THE CONTRACTOR, MACGREGOR TRIANGLE. KORACK COMPANY HAD SOME EQUIPMENT ALSO IN USE. THESE FORCES WERE AT WORK WHEN CORPS OF ENGINEERS' PERSONNEL ARRIVED AT THE SITE. THEY WERE NOT MOBILIZED BY THE CORPS OF ENGINEERS' PERSONNEL NOR WERE ANY INSTRUCTIONS ISSUED TO DIRECT OPERATIONS OR AFFECT THE SIZE OF THE CREW AND AMOUNT OF EQUIPMENT TO BE MOBILIZED.

"3. ON THE LEFT BANK OF THE RIVER R. W. BOTHUM, CORPS OF ENGINEER EMPLOYEE, WAS IN THE FIELD WHEN THE MURPHY FIRE WENT OUT OF CONTROL. REMAINED ON THE SITE FOR A FEW HOURS OBSERVING BUT TOOK NO PART IN ORDERING OR DIRECTING THE ASSOCIATION IN THEIR OPERATIONS. MEN AND EQUIPMENT BELONGING TO MURPHY BROTHERS CONSTRUCTION COMPANY AND THAT MOBILIZED BY THE ASSOCIATION WAS UTILIZED IN COMBATING THE FIRE. BY CORPS OF ENGINEERS' PERSONNEL IN COMBATING THE SUBJECT FIRES."

"4. NO FIRE FIGHTING ACTIVITIES WERE REQUESTED OR COMMAND ACTION TAKEN FURTHER, IT IS STATED IN THE ADMINISTRATIVE REPORT THAT THE SERVICES INVOLVED HERE WERE VOLUNTARILY RENDERED. YOU STATE, HOWEVER, THAT THE STATION LOG AT YOUR OROFINO OFFICE RECORDED THAT MR. MOORE, THE ASSISTANT PROJECT ENGINEER, "CALLED FOR HELP ON THIS FIRE." WHEN THERE IS A CONFLICT BETWEEN THE STATEMENT OF A CLAIMANT AND THE REPORT OF THE ADMINISTRATIVE OFFICE, IT IS A LONG-ESTABLISHED RULE OF THIS OFFICE TO ACCEPT THE LATTER, IN THE ABSENCE OF EVIDENCE SUFFICIENTLY CONVINCING TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS THEREOF. 37 COMP. GEN. 568 (1958). THE EVIDENCE OF RECORD IS NOT SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS OF THE ADMINISTRATIVE REPORT.

FURTHER, EVEN IF THE CORPS OF ENGINEERS HAD REQUESTED THE HELP OF THE ASSOCIATION IN FIGHTING THE FIRES IN QUESTION, PAYMENT MAY NOT BE MADE FOR THOSE FIRE FIGHTING SERVICES THE ASSOCIATION WAS OBLIGATED TO PERFORM FOR THE GOVERNMENT UNDER ITS FIRE SUPPRESSION CONTRACT COVERING THE NONOPERATING AREA, EXCEPT AS PROVIDED IN SUCH CONTRACT.

INSOFAR AS THE FORESTRY LAWS OF IDAHO ARE CONCERNED, AS INDICATED IN OUR CLAIMS DIVISION SETTLEMENT, THOSE LAWS WOULD NOT BE APPLICABLE OR CONTROLLING INSOFAR AS THE UNITED STATES IS CONCERNED. AS TO THOSE LAWS, HOWEVER, WE NOTE THAT SECTION 38-107 IDAHO CODE CURRENTLY PROVIDES THAT EVERY OWNER OF FOREST LANDS IN THE STATE SHALL FURNISH OR PROVIDE--IN THE CLOSED SEASON--PROTECTION AGAINST THE STARTING, EXISTENCE, OR SPREAD OF FIRES. IT FURTHER PROVIDES THAT IF THE OWNER OF ANY FOREST LAND NEGLECTS OR FAILS TO FURNISH SUCH PROTECTION THE STATE SHALL PROVIDE SUCH PATROL AND PROTECTION THEREFOR AT ACTUAL COST TO THE OWNER, SUCH COST NOT TO EXCEED 18 OR 10 CENTS PER ACRE, DEPENDING ON THE LOCATION OF THE LANDS. SECTION 38-107 ALSO PROVIDES THAT AN OWNER OF FOREST LANDS WHO MAINTAINS A MEMBERSHIP IN GOOD STANDING IN AN APPROVED FOREST PROTECTIVE ASSOCIATION (SUCH AS YOUR OWN) AND WHO PAYS ASSESSMENTS TO THE ASSOCIATION IN THE AMOUNTS MENTIONED ABOVE SHALL BE DEEMED TO HAVE FULLY COMPLIED WITH THE REQUIREMENTS OF SECTION 107; AND THAT NO OTHER CHARGES SHALL BE ASSESSED OR COLLECTED AGAINST SUCH LANDOWNERS, EXCEPT IN CASES OF PROVEN NEGLIGENCE.

THUS, IT WOULD APPEAR THAT UNDER SECTION 38-107 A PRIVATE OWNER OF FOREST LANDS WOULD NOT BE LIABLE IN CASE OF A FIRE ON HIS FOREST LANDS- FOR COSTS IN EXCESS OF THOSE SET FORTH IN SECTION 38-107 (18 OR 10 CENTS PER ACRE) EXCEPT IN CASES OF PROVEN NEGLIGENCE. IN OTHER WORDS IT APPEARS THAT EXCEPT IN THE CASE OF PROVEN NEGLIGENCE THE OWNER OF FOREST LANDS MAY NOT BE ASSESSED COSTS IN EXCESS OF 18 OR 10 CENTS PER ACRE (DEPENDING ON THE LOCATION OF THE LANDS) FOR FIRE SUPPRESSION ACTIVITIES ON HIS LAND.

AS TO PROVEN NEGLIGENCE, AS INDICATED ABOVE THE QUESTION OF WHETHER THE GOVERNMENT OR ITS CONTRACTORS WERE NEGLIGENT IN THE INSTANT CASE IS NOT A MATTER WITHIN THE JURISDICTION OF THIS OFFICE.

FURTHER, ALTHOUGH NOT REQUIRED TO DO SO, THE CORPS OF ENGINEERS APPARENTLY ATTEMPTED TO COMPLY WITH SECTION 38-107. THE UNITED STATES ENTERED INTO A CONTRACT WITH YOUR ASSOCIATION UNDER WHICH YOU WOULD PROVIDE PRESUPPRESSION FIRE PROTECTION FOR THE FOREST LAND AREAS (OPERATING AREAS) IN WHICH THE FIRES INVOLVED HERE STARTED. ALSO THE GOVERNMENT CONTRACTORS (MURPHY BROS. AND KORACK, INC.) OPERATING IN THE AREAS INVOLVED WERE REQUIRED BY THE CONTRACTS WITH THE GOVERNMENT TO "FURNISH AT THE SITE ADEQUATE FIGHTING EQUIPMENT SUCH AS BACK TANKS, FLAPS, SHOVELS, RAKES, ETC., TO PROPERLY EQUIP HIS PERSONNEL FOR FIGHTING FIRES."

THUS, TO REQUIRE THE UNITED STATES TO PAY THE ACTUAL COST OF SUPPRESSING THE FIRES INVOLVED HERE WOULD APPARENTLY BE REQUIRING THE UNITED STATES TO DO MORE THAN THE OWNERS OF OTHER FOREST LANDS IN IDAHO, ABSENT PROVEN NEGLIGENCE. INSOFAR AS LIABILITY ON ANY OTHER BASIS IS CONCERNED, IT IS CLEAR FROM THE RECORD BEFORE US THAT UNDER ONE CONTRACT YOUR ASSOCIATION WAS REQUIRED TO FURNISH PRESUPPRESSION FIRE SERVICES ON THE "OPERATING AREAS" (I.E., ON THE LANDS WHERE THE FIRES STARTED) AND UNDER THE OTHER CONTRACT WAS REQUIRED TO PROVIDE PRESUPPRESSION AND SUPPRESSION FIRE SERVICES ON PROJECT LAND OUTSIDE OF THE "OPERATING AREAS." IN THIS CONNECTION IT IS STATED AS FOLLOWS IN THE ADMINISTRATIVE REPORT:

" *** THE LANDS REFERRED TO ARE SO-CALLED OPERATING AREAS. IT WAS IN THE PERFORMANCE OF THIS CONTRACT THAT THE ASSOCIATION PATROLMAN INSTRUCTED GOVERNMENT CONTRACTORS TO LET THEIR FIRES DIE ON 27 JUNE 1968. THE CONTRACT, DA-45-164-CIVENG-64-308, CONTAINS NO PROVISION FOR FIREFIGHTING OPERATIONS.

"TO THE EXTENT THE FIRE FIGHT TOOK PLACE WITHIN THE 'OPERATING AREAS' THE ASSOCIATION WAS STRICTLY VOLUNTEER, THERE BEING NO AGREEMENT BY ANY PERSON AUTHORIZED TO BIND THE GOVERNMENT, TO PAY FOR SUCH SERVICES. THE FIGHT AGAINST FIRES IN THE 'OPERATING AREAS' WAS FOR THE BENEFIT OF THE ASSOCIATION TO PREVENT THE SPREAD OF FIRES TO LANDS OF ITS MEMBERS AND OTHER LANDS WHICH IT WAS OBLIGATED TO PROTECT.

"THE GREATER AREAS OF FIRE SUPPRESSION WAS IN THE NONOPERATING AREAS. EFFORTS EXPENDED BY THE ASSOCIATION THERE WERE NOT MORE THAN THAT REQUIRED BY CONTRACT NO. DACW68-68-C-0078, UNDER WHICH THE ASSOCIATION AGREED TO UNDERTAKE PROTECTION OF THESE AREAS."

IN LIGHT OF THE FOREGOING AND LEAVING OUT THE QUESTION OF NEGLIGENCE IN THIS CASE (I.E., THE TORT LIABILITY OF THE UNITED STATES), WHICH IS OUTSIDE THE SCOPE OF OUR JURISDICTION, WE ARE AWARE OF NO LEGAL BASIS FOR PAYMENT OF THE FULL AMOUNT ($21,577.20) OF YOUR ASSOCIATION'S CLAIM.

HOWEVER, THERE WAS AN EMERGENCY SITUATION AND THE SERVICES RENDERED BY THE ASSOCIATION IN ADDITION TO PROTECTING ITS OWN INTERESTS APPARENTLY COULD BE SAID TO HAVE BENEFITED THE GOVERNMENT BY HELPING TO PREVENT THE DESTRUCTION OF ADDITIONAL FEDERAL FOREST LANDS (AS WELL AS OTHER LANDS) AND, IF IT WAS SUBSEQUENTLY DETERMINED THERE WAS NEGLIGENCE ATTRIBUTABLE OR IMPUTABLE TO THE GOVERNMENT REDUCING THE GOVERNMENT'S TORT LIABILITY FOR ANY DAMAGE TO SURROUNDING STATE AND PRIVATE PROPERTIES.

ACCORDINGLY, IF THE CORPS OF ENGINEERS CAN DETERMINE WHAT PORTION OF YOUR CLAIM MAY REASONABLY BE CONSIDERED ATTRIBUTABLE TO FIRE SUPPRESSION SERVICES PERFORMED BY YOU IN THE "OPERATING AREAS"--AS DISTINGUISHED FROM FIRE SUPPRESSION SERVICES PERFORMED IN THE NONOPERATING AREAS--WE WOULD HAVE NO OBJECTION TO THE CORPS MAKING PAYMENT OF THE CLAIM IN SUCH AMOUNT.

A COPY OF THIS LETTER IS BEING TRANSMITTED TO SENATOR JORDAN AND THE CORPS OF ENGINEERS.