B-100938, MARCH 16, 1951, 30 COMP. GEN. 376

B-100938, MARCH 16, 1951, 30 COMP. GEN. 376

STATES - FIREFIGHTING SERVICES - GOVERNMENT LIABILITY THE STATUTORY DUTY OF A STATE FORESTER TO SUPPRESS AND PREVENT FIRES IN STATE FORESTS EXTENDS TO FIGHTING THE AD OF A FIRE WITHIN THE LIMITS OF A GOVERNMENT RESERVATION IN ORDER TO PREVENT CONTINUATION OF THE FIRE BEYOND THE CONFINES OF SUCH AREA, AND THEREFORE THERE IS NO LEGAL LIABILITY ON THE PART OF THE UNITED STATES TO REIMBURSE THE STATE FOR ITS EXPENDITURES IN FIGHTING A FIRE WITHIN THE GOVERNMENT RESERVATION.

ACTING COMPTROLLER GENERAL YATES TO THE ADMINISTRATOR, VETERANS ADMINISTRATION, MARCH 16, 1951:

REFERENCE IS MADE TO LETTER OF JANUARY 15, 1951, FROM THE DEPUTY ADMINISTRATOR, VETERANS ADMINISTRATION, TRANSMITTING TWO VOUCHERS--- ONE STATED IN FAVOR OF THE STATE OF SOUTH DAKOTA, DEPARTMENT OF SCHOOLS AND PUBLIC LANDS, FOR $713.72, AND THE OTHER IN FAVOR OF THE STATE OF SOUTH DAKOTA, DEPARTMENT OF GAME, FISH AND PARKS, FOR $125.38--- SAID AMOUNTS BEING CLAIMED AS THE EXPENSE INCURRED BY THE STATE IN CONNECTION WITH SUPPRESSING A FIRE ON PROPERTY OF THE VETERANS ADMINISTRATION CENTER, HOT SPRINGS, SOUTH DAKOTA, ON NOVEMBER 1 AND 2, 1949, AND REQUESTING A DECISION AS TO WHETHER THE VOUCHERS MAY BE CERTIFIED FOR PAYMENT.

IT APPEARS THAT ON THE MORNING OF NOVEMBER 1, 1949, A FOREST FIRE BROKE OUT OUTSIDE THE VETERANS ADMINISTRATION CENTER AND SWEPT THROUGH THE GOVERNMENT RESERVATION, THE FIRE BURNING A TOTAL OF 1,032 ACRES OF TIMBER LAND, OF WHICH 259 ACRES CONSTITUTED PROPERTY BELONGING TO THE GOVERNMENT. IT IS STATED THAT THE RESPONSIBILITY FOR THE SUPPRESSION OF THE FIRE WAS ASSUMED BY THE STATE OF SOUTH DAKOTA SINCE THE LAND AFFECTED LIES OUTSIDE THE NATIONAL FOREST BOUNDARIES. THE STATE CLAIMS THAT ITS TOTAL COST FOR FIGHTING THE FIRE WAS $3,356.41, OF WHICH $359.45 WAS PAID TO VETERANS ADMINISTRATION EMPLOYEES WHOSE SERVICES, AMONG OTHERS, WERE UTILIZED IN FIGHTING THE FIRE. IT IS FURTHER STATED THAT THE VETERANS ADMINISTRATION INCURRED AN EXPENSE OF $1,110 IN FIGHTING THE FIRE AND THE RECORD INDICATES THAT THE LATTER WAS FOR FIGHTING THE FIRE NOT ONLY ON THE VETERANS ADMINISTRATION PROPERTY BUT ALSO ON THE ADJACENT AREA.

THE STATE FORESTER APPARENTLY CONTENDS THAT THE DUTY OF HIS AGENCY DID NOT EXTEND TO FIGHTING THAT PART OF THE FIRE FROM THE BOUNDARY OF AND WITHIN THE AREA OF THE VETERANS ADMINISTRATION CENTER AND, ON BEHALF OF THE STATE, HE CLAIMS REIMBURSEMENT FROM THE UNITED STATES OF 25 PERCENT OF THE STATE'S EXPENDITURES FOR FIGHTING THE FIRE, ON THE BASIS THAT THE GOVERNMENT LAND AFFECTED BY THE FIRE WAS APPROXIMATELY 25 PERCENT OF THE FIRE AREA.

THE DEPUTY ADMINISTRATOR REFERS TO A DECISION OF FEBRUARY 7, 1945, 24 COMP. GEN. 599, DENYING THE CLAIM OF THE BOARD OF FIRE COMMISSIONERS OF DETROIT, MICHIGAN, FOR REIMBURSEMENT OF THE ALLEGED COST OF SERVICES IN CONNECTION WITH A FIRE AT FORT WAYNE, LOCATED GEOGRAPHICALLY WITHIN THE CITY BOUNDARIES OF DETROIT, IN WHICH DECISION IT WAS HELD THAT, QUOTING FROM THE SYLLABUS:

IN VIEW OF THE LEGAL DUTY OF A MUNICIPALITY TO EXTINGUISH ALL FIRES WITHIN ITS LIMITS, THE GOVERNMENT IS UNDER NO LEGAL OBLIGATION TO MAKE PAYMENT TO A CITY FOR FIREFIGHTING SERVICES RENDERED IN CONNECTION WITH A FIRE AT A GOVERNMENT RESERVATION LOCATED WITHIN THE CITY LIMITS.

THE RECORD IN THIS CASE SHOWS THAT IT IS THE STATUTORY DUTY OF THE STATE FORESTER OF THE STATE OF SOUTH DAKOTA TO COOPERATE WITH THE UNITED STATES FOREST SERVICE AND WITH ALL STATE, COUNTY, AND MUNICIPAL AGENCIES IN THE PROTECTION OF FORESTS FROM FIRE, INCLUDING THE PREVENTION AND SUPPRESSION OF FIRES. OBVIOUSLY, IT WAS THE DUTY OF THE STATE FORESTER TO SUPPRESS THAT PART OF THE FIRE OUTSIDE OF THE VETERANS ADMINISTRATION CENTER.

AS INDICATED ABOVE, THE FIRE ORIGINATED OUTSIDE THE CENTER AND, THROUGH NO FAULT OF THE GOVERNMENT, SPREAD TO AND WITHIN THE CENTER. ALTHOUGH THE LEGAL JURISDICTION OF THE AREA OF THE VETERANS ADMINISTRATION CENTER IS IN THE FEDERAL GOVERNMENT AND NOT IN THE STATE OF SOUTH DAKOTA, IT IS NOT APPARENT HOW, IN THE ABSENCE OF OBJECTION BY THE FEDERAL GOVERNMENT, IT COULD BE SUCCESSFULLY CONTENDED THAT THE STATE FORESTER'S DUTY DID NOT EXTEND TO FIGHTING THE SPREAD OF THE FIRE WITHIN THE LIMIT OF THE VETERANS ADMINISTRATION CENTER. FAILURE TO DO SO COULD CONCEIVABLY RESULT IN A CONTINUATION OF THE FIRE BEYOND THE CONFINES OF SUCH AREA. ACCORDINGLY, IT MUST BE CONCLUDED THAT THERE IS NO LEGAL LIABILITY ON THE PART OF THE UNITED STATES TO REIMBURSE THE STATE OF SOUTH DAKOTA FOR ITS EXPENDITURES IN THE MATTER.

WITH RESPECT TO THE STATE'S CLAIM OF 25 PERCENT OF ITS ALLEGED EXPENDITURES BECAUSE THE AREA OF THE GOVERNMENT PROPERTY INVOLVED CONSISTED OF APPROXIMATELY 25 PERCENT OF THE WHOLE AREA OF THE FIRE, IT IS DEEMED PERTINENT TO POINT OUT THAT EVEN IF SUCH BASIS WERE OTHERWISE CORRECT, IT COULD NOT BE APPLICABLE HERE, SINCE IT OVERLOOKS THE FACT THAT THE VETERANS ADMINISTRATION EXPENDED $1,110 IN FIGHTING THE FIRE BOTH OUTSIDE AND INSIDE THE CENTER. THAT AMOUNT, ADDED TO THE AMOUNT OF $3,356.41, SAID TO HAVE BEEN EXPENDED BY THE STATE, WOULD TOTAL $4,466.41. IT APPEARS THAT THE AREA OF THE GOVERNMENT PROPERTY CONSTITUTED, IN FACT, 25.097 PERCENT OF THE WHOLE AREA AFFECTED. PRORATING THE TOTAL AMOUNT ON THAT BASIS WOULD MAKE A TOTAL OF $1,120.93 ALLOCABLE TO THE 259 ACRES OF GOVERNMENT PROPERTY. THUS, EVEN IF THE CLAIM OF THE STATE OF SOUTH DAKOTA WERE OTHERWISE ESTABLISHED, THE AMOUNT OF IT WOULD NOT EXCEED $10.93.

ACCORDINGLY, CERTIFICATION OF THE VOUCHERS FOR PAYMENT IS NOT AUTHORIZED. THE VOUCHERS AND RELATED PAPERS ARE RETURNED HEREWITH.