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FOREST SERVICE HANDBOOK
Portland, Oregon
FSH 6509.11h - SERVICE-WIDE CLAIMS MANAGEMENT HANDBOOK
R6 Supplement No. 6509.11h-94-1
Effective March 15, 1994
POSTING NOTICE. Supplements are numbered consecutively by title and
calendar year. Post by document name. Remove entire document, if one exists, and
replace with this supplement. The last R-6 Supplement to this handbook was
6509.11h-93-4
This supplement supersedes Supplement 6509.11h-93-2.
Document Name
6509.11h,20-21
Superseded New
(Number of Sheets)
6
5
Digest:
21.11c - Updated to include new Washington State statute for the government to
recover fire suppression costs.
21.21b - Provides guidance on processing NSF checks.
21.5 - Contracting Officers have authority to sign releases for claims arising under
the contract.
Revises material and moves pertinent direction from FSM 6570.
/s/ John E. Lowe
JOHN E. LOWE
Regional Forester
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FSH 6509.11h - SERVICE-WIDE CLAIMS MANAGEMENT HANDBOOK
R6 SUPPLEMENT 6509.11h-94-1
EFFECTIVE 03/15/94
CHAPTER 20 - ADMINISTRATIVE CLAIMS FOR THE GOVERNMENT
21 - TORT CLAIMS AND TRESPASS CLAIMS FOR THE GOVERNMENT.
1. Statute of Limitations. For commencing legal action brought by the
United States. Subject to exclusions in item 2, the following time limitations apply.
See 28 U.S.C. 2415 and 2416:
a. Damages resulting from unauthorized timber cutting and grazing.
6 years
b. Suppression costs and resource damages from human-caused fires burning
on National Forests.
6 years
c. Suppression costs of fires burning either solely on private land or partly on
National Forest and private land.
3 years
d. Damages to personal property, such as vehicles.
3 years
e. Damages under a contract, such as defaults.
6 years
2. Exclusions. For purposes of computing the statute of limitation period
established in item 1, exclude the time periods when:
a. The defendant is outside the United States, its territories and possessions,
the District of Columbia, or the Commonwealth of Puerto Rico.
b. The defendant is exempt from legal process because of infancy, mental
incompetence, diplomatic immunity, or any other reason.
c. Facts material to the right of action are not known and reasonably could
not be known by an official of the United States charged with the responsibility to
act in the circumstances.
d. The United States is in a state of war declared pursuant to Article I,
Section 8, of the Constitution of the United States.
Consult with the Office of the General Counsel if there are any doubts when the
statute of limitations runs.
21.1 - Determining Claim Amount.
21.11 - Tort Claims for the Government.
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21.11c - Fire Suppression Costs. The ability of the Government to recover costs for
suppressing fires generally takes three different approaches:
1. To pursue recovery under a timber sale contract for an operations fire.
The timber sale contract limits this expenditure to a certain stated amount per fire,
except in the case of negligence. Timber sale contract suppression cost
responsibilities and instructions relating to employment of the timber purchaser's
employees and equipment are covered in the particular timber sale contract.
2. To pursue recovery under the body of common law. The specifics have
been generally shaped by decisions handed down in lawsuits.
In the states of Oregon and Washington, the Government, in the past, has relied
upon the common law right of a landowner to recover fire suppression costs
associated with fighting fire. Suppression costs have been interpreted to be the
actual costs of suppression, including the wages and salaries of Forest Service
employees.
The case law used has been Chesapeake & Ohio Ry. Co. v. United States, 139 F.2d
632 (4th Cir. 1944). In that case, the Fourth Circuit held that the federal
government is entitled under common law to recover expenses incurred in fighting a
fire upon the principle that the owner of property is entitled to protection against
evident danger of the destruction of his property. Also see People of the State of
California v. United States, 307 F.2d 941 (9th Cir. 1962) for a Ninth Circuit case
acknowledging the Chesapeake decision.
In City of Flagstaff v. Atchison, Topeka & Santa Fe Ry., 719 F.2d 324 (9th Cir.
1983), and United States v. Denver & Rio Grande Western RR, 547 F.2d 1101,1104
(10th Cir. 1977), the courts held a property owner, including a government, can
recover the costs of suppressing a fire on their own property.
3. For the federal government to avail itself to the statutory provisions of the
state. The courts have determined this means of collection as a viable avenue
through decisions in United States v. Boone, 476 F.2d, 278 (10th Cir. 1973) and
United States v. State of California, 655 F.2d, 914 (9th Cir. 1980). The state
statutes for both Oregon and Washington follow.
a. Oregon Revised Statutes 477.068, 477.085, and 477.090. The Oregon
State law provides that the actual costs incurred by the forester or an agency are
recoverable. ORS 477.090 provides the United States, as a landowner, to recover
the full amount of all expenses in fighting fire. Thus the government is entitled to
recover both in its governmental capacity and as a landowner. ORS 477.090 further
states that "... the United States, state, ... private owners whose property is injured
or destroyed by fires ... may recover in a civil action double the amount of damages
suffered if the fires occurred through wilfulness, malice, or negligence."
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As for resource damages, in Sinsel v. Henderson, 62 Ore. App. 150, 153 (1983) citing
United States v. Firchau, 234 Or. 241, 380 P.2d 800 (1963), the court determined
the measure of damages is the difference between the value of the land before and
after the fire. An injured party is entitled to recover the stumpage value, injury to
young growth, costs of slash disposal, and the like. Actual damages are not limited
to stumpage value.
In addition, owners, operators, and persons in possession of forest land have the
duty to fight a fire burning on such land when: the fire was caused by their
negligence; if unreleased slash exists on the land; where one of the following
conditions exists: 1) forest patrol assessments are not regularly paid; 2) the land is
not protected pursuant to membership in a forest protective association; 3) the land
is not protected by the State Forester pursuant to a cooperative agreement or
contract.
b. Washington State Revised Statute 76.04.495. Prior to June 30, 1993,
there was no specific provision in the Washington State law to allow for the federal
government to recover costs of suppression. However, an addition was made to the
language of RCW 76.04.495, which provides for the federal government to recover
reasonable expenses from a negligent party who is responsible for the starting or
existence of a fire which spreads on forest land. The change to the statute includes
the language, "... or any fire protection agency of the United States may recover
such reasonable expenses..." and provides that the authority to recover these costs
"...shall apply only to such expenses incurred after June 30, 1993." Needless to say,
since this is a new provision of the law, any future lawsuits will need to be closely
reviewed to provide guidance on how the courts are interpreting the statute.
In addition, owners, operators, or persons in possession of forest land have a duty to
fight fire on such land if they negligently caused the fire, if slash exists on the land
and no certificate of clearance has been obtained, or no forest patrol assessment has
been paid on the land. This means that a persons' total cost responsibility may vary
depending upon the fire and the amount of their resources.
In order for those owners, easement holders, operators, and persons in possession of
forest land, other than timber sale purchasers, to fulfill their duty under the state
laws of Oregon and Washington, forest officers should generally not employ those
persons, their employees or equipment, connected with the operation to fight a fire
when the fire was caused by the parties' actions or when the start or spread of the
fire could have been prevented by the person or party involved. This procedure is
necessary to allow persons to comply with their duty under the state laws in Oregon
and Washington (ORS 477.064, ORS 477.090, and RCW 76.04.380). This does not
prevent the Forest Service in fulfilling its responsibility as the protection agency
from directing and coordinating the suppression efforts of all persons having a duty
to fight the fire.
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21.12 - Trespass Claims for the Government.
21.12b - Timber Trespass.
Oregon and Washington State Laws. The provable facts developed in a trespass
investigation will determine whether additional values or penalties are assessable.
Under Oregon revised statute (ORS) 105.815 and 105.810, resource values will be
doubled if an innocent trespass or trebled when a willful trespass has occurred.
State of Washington statute (RCW) 64.12.040 and 64.12.030 allows only single
damages for innocent trespass and treble where willful trespass is involved.
However, the resource must have been severed from the land by the trespasser in
order for these rules to apply. If, for instance, a sawlog is taken from a deck and cut
into firewood, a conversion of property has occurred and, as such, would entitle the
Government to the "timber property" value only. The "timber property" value in
such a case would be the total of the stumpage value plus felling, bucking, yarding,
and decking costs. This value would not be doubled or trebled since a product was
taken rather than a resource being severed from the land. Likewise, a blowdown
tree is considered to be already severed from the land and values would not be
doubled or trebled.
In a case where it can be proved that a resource was severed from the land and it is
later "found" in the marketplace where it was sold for a very high price, the
damages would be the "where found" value. However, the "where found" value
would not be applied in such a case if it could not be supported by transaction
evidence and/or if the doubling or trebling of the stumpage value per State law
would result in a larger damages amount.
21.2 - Initiating Collections.
21.21 - Initial and Follow-up Billings.
21.21b - Claims for Minimal Amounts. Due to the costs surrounding the processing
of Non Sufficient Funds (NSF) checks, collection actions need not be initiated on
checks returned by the bank for $35 or less unless
1) the check was the result of a claim from either procurement or timber sale
contracts, 2) the check was a result of functional violations on lands or to property
administered by the Forest Service, 3) the check is for a special-use permit, or 4)
when it is administratively determined to be in the best interests of the Forest
Service to pursue collection action. Refer to FSM 6534.4 for policy on waiver of
interest charges.
21.5 - Releases From Liability. Under the statutory authority of the Contract
Disputes Act, the Contracting Officer has the full responsibility to settle claims by
the Government against contractors for actions which arise under the contract,
including the signing of Releases from Liability.