B-111179, MARCH 20, 1953, 32 COMP. GEN. 401

B-111179, MARCH 20, 1953, 32 COMP. GEN. 401

STATE FIREFIGHTING SERVICES - FIRE CAUSED BY FEDERAL EMPLOYEES ON PRIVATE PROPERTY - PAYMENT LIABILITY IN VIEW OF THE STATUTORY DUTY OF THE STATE FORESTER OF VIRGINIA TO PREVENT AND SUPPRESS FIRES ON FOREST LANDS WITHIN THE STATE BOUNDARIES WITHOUT COST TO THE OWNERS, THE GOVERNMENT IS NOT LIABLE FOR THE COST INCURRED BY THE STATE IN EXTINGUISHING A FOREST FIRE ON PRIVATE PROPERTY CAUSED BY FLARES DROPPED FROM NAVAL AIRCRAFT ON THE BASIS OF A QUASI- CONTRACT, THAT THE SERVICES RENDERED MITIGATED DAMAGES WHICH WOULD HAVE RESULTED FROM A TORT; ALSO A STATE STATUTE AUTHORIZING COLLECTION OF SUCH COSTS FROM THE PERSON RESPONSIBLE FOR THE FIRE IS NOT APPLICABLE TO THE GOVERNMENT.

ACTING COMPTROLLER GENERAL YATES TO THE ATTORNEY GENERAL, COMMONWEALTH OF VIRGINIA, MARCH 20, 1953:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 22, 1952, REQUESTING REVIEW OF DECISION DATED SEPTEMBER 4, 1952, B-111179, TO THE VIRGINIA CONSERVATION COMMISSION, CHARLOTTESVILLE, VIRGINIA, WITH REFERENCE TO ITS CLAIM FOR THE COST OF EXTINGUISHING A FOREST FIRE IN WESTMORELAND COUNTY, VIRGINIA, ON DECEMBER 11, 1951, ALLEGEDLY CAUSED BY FLARES DROPPED FROM NAVAL AIRCRAFT BASED AT THE NAVAL PROVING GROUND, DAHLGREN, VIRGINIA. THE DECISION HELD THAT THE CLAIM WAS ONE SOUNDING IN TORT AND WAS NOT FOR SETTLEMENT BY THE GENERAL ACCOUNTING OFFICE OR FOR REPORTING TO THE CONGRESS PURSUANT TO THE ACT OF APRIL 10, 1928, 45 STAT. 413, 31 U.S.C. 236.

YOUR LETTER SUGGESTS THAT THE CLAIM BE CONSIDERED AS ONE FOR SERVICES RENDERED IN MITIGATING THE DAMAGES WHICH WOULD HAVE RESULTED FROM A TORT AND ALLOWED ON A QUASI-CONTRACTUAL BASIS.

THE FIRST QUESTION FOR DETERMINATION IS WHETHER THERE IS A LEGAL DUTY UPON THE STATE FORESTER OF THE STATE OF VIRGINIA, OR ITS FIRE FIGHTING FACILITIES, TO EXTINGUISH FIRES WHICH MIGHT ARISE ON FOREST LANDS WITHOUT COST TO THE OWNER. AN IDENTICAL QUESTION WAS RAISED BY THE SECRETARY OF THE ARMY IN A LETTER DATED SEPTEMBER 12, 1951, IN CONNECTION WITH A PROPOSED AGREEMENT BETEEEN THE CORPS OF ENGINEERS AND THE COMMONWEALTH OF VIRGINIA WHEREBY THE FORMER WOULD REIMBURSE THE LATTER FOR DISBURSEMENTS TO SUPPRESS, EXTINGUISH AND CONTROL FIRES ON GOVERNMENT-OWNED FOREST LAND LOCATED IN SEVERAL COUNTIES WITHIN THE STATE. AFTER DISCUSSING PERTINENT SECTIONS OF TITLE 10 AND SECTION 1, TITLE 27 OF THE CODE OF VIRGINIA, 1950, IT WAS STATED IN DECISION OF DECEMBER 17, 1951, B-105602, AS FOLLOWS:

* * * IT MUST BE CONCLUDED, IN THE ABSENCE OF JUDICIAL DETERMINATIONS OTHERWISE, THAT IT IS THE STATUTORY DUTY OF THE STATE FORESTER OF THE STATE OF VIRGINIA TO PREVENT AND SUPPRESS FIRES ON THE FORESTS WITHIN THE STATE BOUNDARIES; THAT, FOLLOWING THE RATIONALE OF THE OFFICE DECISIONS SUPRA (24 COMP. GEN. 599; 26 ID. 382; B-100938, MARCH 16, 1951), THE FEDERAL GOVERNMENT IS ENTITLED TO THE BENEFITS OF SUCH SERVICES WITHOUT PAYMENT THEREFOR * * *.

THE LAND INVOLVED IN THE INSTANT CASE WAS PRIVATELY OWNED AND COVERED BY THE STATEWIDE PLAN OF FIRE PROTECTION WITHOUT COST TO THE OWNER--- THE EXPENSES OF SAME, UNDER SECTION 10-57 OF THE CODE OF VIRGINIA, 1950, BEING FOR PAYMENT FROM THE FUND PROVIDED FOR PROTECTION OF FORESTS IN THE SEVERAL COUNTIES, AS APPROPRIATED FOR SUCH PURPOSE PURSUANT TO SECTION 10- 47. CONSEQUENTLY, THERE APPEARS TO BE NO BASIS FOR PAYMENT OF THE AMOUNT INVOLVED ON A QUASI-CONTRACTUAL BASIS.

ALSO, THERE HAS BEEN CONSIDERED THE QUESTION AS TO WHETHER THE STATE FORESTER MAY COLLECT THE COSTS OF FIRE FIGHTING FROM THE FEDERAL GOVERNMENT UNDER SECTION 10-58, WHICH AUTHORIZES COLLECTION FROM THE PERSON RESPONSIBLE FOR THE ORIGIN OF THE FIRE BY HIS NEGLIGENCE OR INTENT. AS WITH THE FIRST QUESTION, THIS OFFICE HAD OCCASION TO CONSIDER AND PASS UPON A SIMILAR ONE IN CONNECTION WITH A CLAIM SUBMITTED BY THE FORESTRY DIVISION OF THE STATE OF WASHINGTON PROVIDING FOR THE RECOVERY BY THE STATE OF THE COST OF EXTINGUISHING A FOREST FIRE FROM "ANY PERSON, FIRM OR CORPORATION RESPONSIBLE FOR EITHER STARTING OR THE EXISTENCE OF SUCH A FIRE.' IN DECISION OF AUGUST 28, 1940, B-6400, TO THE SECRETARY OF THE INTERIOR, IT WAS HELD:

* * * ALSO, ASIDE FROM THE FUNDAMENTAL PROPOSITION THAT UNDER THE DUAL SYSTEM OF GOVERNMENT EXISTING IN THE UNITED STATES A STATE CAN NOT IMPOSE AN OBLIGATION UPON THE FEDERAL GOVERNMENT WITHOUT THE CONSENT OF THE CONGRESS, IT IS A WELL-ESTABLISHED CANON OF STATUTORY INTERPRETATION THAT THE GENERAL WORDS OF A STATUTE DO NOT INCLUDE THE GOVERNMENT UNLESS THE CONSTRUCTION BE CLEAR AND INDISPUTABLE UPON THE TEXT OF THE LAW; AND EVEN IF THE STATE OF WASHINGTON CAN ESTABLISH THAT THE FOREST FIRE HERE INVOLVED RESULTED FROM THE NEGLIGENCE OF CERTAIN PERSONS WHILE FUNCTIONING AS EMPLOYEES OF THE UNITED STATES AND CAN RECOVER FROM SUCH PERSONS UNDER THE TERMS OF SAID SECTION 5806 OF THE REVISED STATUTES OF THE STATE FOR THE COST INCURRED BY IT IN BRINGING THE FIRE UNDER CONTROL, SUCH FACT IN NOWISE IMPOSES ANY LEGAL OBLIGATION UPON THE FEDERAL GOVERNMENT WITH RESPECT TO THE MATTER AND THERE IS NO ROOM FOR DOUBT BUT THAT THE WORDS "PERSON, FIRM OR CORPORATION" APPEARING IN THE STATUTE DO NOT INCLUDE THE FEDERAL GOVERNMENT AND THAT SAID LAW IS NOT FOR APPLICATION HERE.

WHAT WAS STATED IN THE FOREGOING EXCERPT LIKEWISE IS FOR APPLICATION IN THE PRESENT CASE.