B-128971, SEP. 25, 1956

B-128971, SEP. 25, 1956

TO MR. D. L. PHIPPS, SECRETARY, OREGON STATE BOARD OF FORESTRY:

YOUR LETTER OF MARCH 29, 1956, TO THE SECRETARY OF THE INTERIOR, HAS BEEN REFERRED TO THIS OFFICE FOR CONSIDERATION, WITH ITS ENCLOSURES, CONCERNING THE CLAIM OF THE STATE OF OREGON AND THE OREGON FOREST FIRE ASSOCIATION AGAINST THE UNITED STATES IN THE AMOUNT OF $184,101.89, REPRESENTING COSTS ALLEGED TO HAVE BEEN INCURRED IN FIGHTING THE SO CALLED VINCENT CREEK FOREST FIRE OF 1951, WHICH IS STATED TO HAVE ORIGINATED ON FOREST LAND OWNED BY THE UNITED STATES AND UNDER THE JURISDICTION OF THE BUREAU OF LAND MANAGEMENT, DEPARTMENT OF THE INTERIOR. THERE HAS ALSO BEEN RECEIVED A LETTER DATED AUGUST 22, 1956, FROM HONORABLE HARRIS ELLSWORTH RELATIVE TO THE MATTER.

IT APPEARS THAT THE FIRE STARTED AUGUST 16, 1951, ON FEDERAL LANDS IN THE STATE OF OREGON KNOWN AS THE "OREGON AND CALIFORNIA REVESTED LANDS" AND THE "RECONVEYED COOS BAY WAGON ROAD GRANT LANDS" AND WAS EXTINGUISHED ON SEPTEMBER 26, 1951, AFTER HAVING BURNED APPROXIMATELY 28,000 ACRES OF FOREST LAND, INCLUDING LAND OWNED BY THE UNITED STATES (APPROXIMATELY 11,000 ACRES) AND PRIVATELY-OWNED LAND. IT IS STATED IN THE MEMORANDUM BY THE OREGON STATE BOARD OF FORESTRY DATED FEBRUARY 29, 1956, TRANSMITTED WITH YOUR LETTER, THAT THE CLAIMANTS EXPENDED $469,101.89 TO CONTROL AND EXTINGUISH THE FIRE, OF WHICH AMOUNT $235,000 HAS BEEN REIMBURSED BY E. K. WOOD LUMBER COMPANY AND $50,000 BY THE LONG-BELL LUMBER COMPANY, LEAVING A BALANCE OF $184,101.89, PAYMENT OF WHICH THE CLAIMANTS CONTEND SHOULD BE MADE BY THE UNITED STATES. THE BASES OF THE CONTENTION, AS SET OUT AT PAGE 62 OF THE MEMORANDUM FILED BY THE STATE AUTHORITIES IN SUPPORT OF THE CLAIM, ARE IN SUBSTANCE AS FOLLOWS:

1. CONTRACT NO. I-1L-907, DATED JUNE 30, 1950, WHEREIN THE UNITED STATES AGREED TO PAY THE OREGON FOREST FIRE ASSOCIATION FOR FIRE PROTECTION FURNISHED FOR THE FOREST LAND INVOLVED.

2.THAT THE FIRE ORIGINATED ON FEDERAL LAND AS A RESULT OF THE NEGLIGENCE OF E. K. WOOD LUMBER COMPANY IN CONSTRUCTING A RIGHT OF WAY ACROSS FEDERAL LAND WITH THE KNOWLEDGE AND CONSENT OF THE UNITED STATES.

3. THAT THE UNITED STATES WAS NEGLIGENT IN PERMITTING THE ACCUMULATION OF LOGGING DEBRIS AND SLASHINGS ON ITS LAND.

CONTRACT NO. I-1L-907 PROVIDED IN PART (THE BUREAU OF LAND MANAGEMENT AND THE OREGON FOREST FIRE ASSOCIATION BEING DESIGNATED AS BLM AND OFFA, RESPECTIVELY):

"7.PRIOR TO JULY 1 OF EACH YEAR, THE BLM SHALL PREPARE A STATEMENT SHOWING THE ACREAGE OF O AND C LANDS TO BE PROTECTED BY EACH ASSOCIATION WITH WHICH THE OFFA CONTRACTS. BLM AGREES TO PAY OFFA FOR SUCH PROTECTION AN AMOUNT PER ACRE, TO BE EFFECTIVE FOR THE ENSUING FISCAL YEAR, WHICH SHALL BE EQUAL TO THE WEIGHTED AVERAGE COST OF PROTECTION OF FOREST LANDS DURING THE PRECEDING CALENDAR YEAR AS SHOWN BY THE OFFICIAL CERTIFIED REPORTS OF THE ASSOCIATION FURNISHING PROTECTION HEREUNDER AND AS SHOWN BY THE REPORTS FOR STATE DISTRICTS AS CERTIFIED BY THE OREGON STATE FORESTER. OFFA SHALL OBTAIN SAID REPORTS AND FURNISH THEM TO BLM. FOR PROVIDING PROTECTION HEREUNDER, THE BLM INTENDS THAT OFFA SHALL BE COMPENSATED IN THE FULL AMOUNT COMPUTED IN THE MANNER PRESCRIBED ABOVE, PROVIDED, HOWEVER, IT IS AGREED THAT BLM SHALL NOT BE OBLIGATED TO PAY A GREATER AMOUNT IN ANY FISCAL YEAR FOR SUCH PROTECTION THAN IS DESIGNATED BY CONGRESS FOR THE PROTECTION OF THE O AND C LANDS FROM FIRE.

"BLM SHALL MAKE PAYMENT TO OFFA AS FOLLOWS: FOR THE PERIOD JULY 1 TO DECEMBER 31 OF EACH YEAR, A PAYMENT OF APPROXIMATELY 60 PERCENT OF THE FULL AMOUNT DUE FOR THE FISCAL YEAR SHALL BE PAID AS SOON AFTER DECEMBER 31 AS PRACTICABLE. FOR THE PERIOD COMMENCING JANUARY 1 TO AND INCLUDING JUNE 30 OF EACH FISCAL YEAR THE BALANCE OF THE AMOUNT DUE FOR SUCH FISCAL YEAR SHALL BE PAID AS SOON AS PRACTICABLE AFTER JUNE 30.

"9. IT IS UNDERSTOOD AND AGREED THAT BLM AND OFFA SHALL EACH HAVE THE RIGHT DURING THE MONTHS OF NOVEMBER TO FEBRUARY INCLUSIVE, OF EACH FISCAL YEAR, TO TERMINATE THIS AGREEMENT BY GIVING TO THE OTHER PARTY NOT LESS THAN THIRTY DAYS' NOTICE IN WRITING IN ADVANCE OF SELECTED TERMINATION DATE. SUCH TERMINATION SHALL NOT RELIEVE BLM FROM PAYMENT OF THE PRO RATA AMOUNT DUE TO OFFA PURSUANT TO THE TERMS OF THIS AGREEMENT TO AND INCLUDING THE EFFECTIVE DATE OF SUCH TERMINATION.'

IT APPEARS THAT THE BUREAU OF LAND MANAGEMENT, PURSUANT TO THE PROVISIONS OF PARAGRAPH 9, CANCELLED THE CONTRACT EFFECTIVE JUNE 30, 1952, AND THEREAFTER ENTERED INTO A CONTRACT WITH THE STATE OF OREGON, INSTEAD OF THE OREGON FOREST FIRE ASSOCIATION, COVERING SERVICES SIMILAR TO THOSE COVERED BY THE ORIGINAL CONTRACT. THERE APPEARS TO BE UNANIMOUS AGREEMENT THAT FULL PAYMENT WAS MADE BY THE UNITED STATES IN ACCORDANCE WITH THE TERMS OF CONTRACT NO. I-1L-907, INCLUDING PAYMENT FOR THE YEAR JULY 1, 1951, THROUGH JUNE 30, 1952, DURING WHICH THE FIRE OCCURRED. HOWEVER, THE CLAIMANTS CONTEND THAT THE BALANCE OF THE EMERGENCY EXPENSES INCURRED BY THEM AS A RESULT OF THE VINCENT CREEK FOREST FIRE OF 1951, AFTER DEDUCTING THE AMOUNTS RECEIVED FROM E. K. WOOD LUMBER COMPANY AND THE LONG-BELL LUMBER COMPANY AS ABOVE SET OUT, SHOULD BE REIMBURSED TO THEM BY THE UNITED STATES.

SINCE PAYMENT HAS BEEN MADE IN FULL BY THE UNITED STATES IN STRICT ACCORDANCE WITH THE PROVISIONS OF CONTRACT NO. I-1L-907 AND SINCE THAT CONTRACT WAS TERMINATED ALSO IN STRICT ACCORDANCE WITH ITS TERMS, THERE CLEARLY IS NO FURTHER LEGAL LIABILITY IMPOSED ON THE UNITED STATES UNDER THE CONTRACT, WHICH CONTAINED NO PROVISION FOR PAYMENT OF UNUSUAL OR EMERGENCY EXPENSES, EXCEPT AS THEY MIGHT BE REFLECTED IN THE AMOUNT TO BE PAID FOR THE NEXT YEAR. NO ADDITIONAL PAYMENT WAS PROVIDED FOR IN THE EVENT OF CANCELLATION. THE FACT THAT THE NEW CONTRACT CONTAINS EXPRESS PROVISIONS FOR PAYMENT BY THE UNITED STATES OF EMERGENCY EXPENSES WOULD APPEAR TO EVIDENCE RECOGNITION OF THE FACT THAT SUCH PROVISIONS WERE LACKING FROM THE OLD ONE.

WITH RESPECT TO THE CONTENTIONS THAT THE NEGLIGENCE OF E. K. WOOD LUMBER COMPANY IN STARTING THE FIRE ON FEDERAL LAND SHOULD BE IMPUTED TO THE UNITED STATES, AND THAT THE UNITED STATES WAS NEGLIGENT IN PERMITTING THE ACCUMULATION OF LOGGING DEBRIS AND SLASHINGS ON ITS LAND, IT MAY BE STATED THAT JURISDICTION TO SETTLE TORT CLAIMS AGAINST THE UNITED STATES IN AN AMOUNT IN EXCESS OF $1,000 IS VESTED EXCLUSIVELY IN THE DISTRICT COURTS (SEE 28 U.S.C. 1346 (B) (, AND THAT THE JURISDICTION OF THE GENERAL ACCOUNTING OFFICE DOES NOT EXTEND TO THE ALLOWANCE OF TORT CLAIMS ARISING IN OTHER GOVERNMENT AGENCIES. UNITED STATES V. ST. LOUIS CLAY PRODUCTS COMPANY, 68 F.SUPP. 902.

FOR THE REASONS ABOVE SET OUT, THERE APPEARS NO LEGAL BASIS FOR ALLOWANCE BY OUR OFFICE OF ANY ..END :