Arnhold v. United States, 2956

CourtUnited States District Courts. 9th Circuit. United States District Court (Western District of Washington)
Citation166 F. Supp. 373
Docket NumberNo. 2956,3533.,2956
PartiesArthur A. ARNHOLD et al., Plaintiffs, v. UNITED STATES of America et al., Defendants. RAYONIER INCORPORATED, a Delaware corporation, Plaintiff, v. UNITED STATES of America, Defendant.
Decision Date23 June 1958

166 F. Supp. 373

Arthur A. ARNHOLD et al., Plaintiffs,
UNITED STATES of America et al., Defendants.

RAYONIER INCORPORATED, a Delaware corporation, Plaintiff,
UNITED STATES of America, Defendant.

Nos. 2956, 3533.

United States District Court W. D. Washington, N. D.

June 23, 1958.

166 F. Supp. 374
166 F. Supp. 375
166 F. Supp. 376
Ferguson & Burdell, William H. Ferguson and William Wesselhoeft, Seattle, Wash., for plaintiffs Arnhold, et al

Wright, Innis, Simon & Todd and Donald A. Schmechel, Seattle, Wash., for defendant Port Angeles and Western R. R. Co. and trustee in reorganization.

Skeel, McKelvy, Henke, Evenson & Uhlmann, William R. McKelvy and William Springer; Kahin, Carmody & Horswill, George Kahin and Byron D. Coney,

166 F. Supp. 377
Seattle, Wash., for defendant Fibreboard Products, Inc

Holman, Mickelwait, Marion, Black & Perkins, Lucien F. Marion and Burroughs B. Anderson, Seattle, Wash., for plaintiff Rayonier Inc.

Charles P. Moriarty, U. S. Atty., Francis N. Cushman, Asst. U. S. Atty., Seattle, Wash., and Arno Reifenberg, Dept. of Agriculture, Portland, Ore., for the government.

BOLDT, District Judge.

In cause #3533 Rayonier Incorporated seeks recovery of damages from the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671-2680, for loss of standing timber and other property allegedly caused by negligence of employees of the United States Forest Service in failing to prevent, control and extinguish a forest fire, ultimately of disaster proportions, which occurred in August and September of 1951 on the Olympic Peninsula, Washington and is known as the Forks fire from the name of a town in the vicinity. In cause #2956 plaintiffs Arnhold and several other owners of residential and other property damaged in the fire, on identical allegations of negligence, seek similar recovery against the United States and join as additional defendants the Port Angeles and Western Railroad Company and Fibreboard Products, Inc., alleging negligence of each and both causing or contributing to the damage complained of and asserting jurisdiction of the claims against the additional defendants under 28 U.S.C. § 1332 by diversity of citizenship. The two entirely independent actions were consolidated for hearing on motions to dismiss, pretrial conferences and for trial of liability issues.

On motion of the United States, this court, relying on language in the Dalehite v. United States opinion, 1953, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427, dismissed both actions on the ground that the complaints failed to state a claim against the United States upon which relief could be granted. The Court of Appeals affirmed, Rayonier Inc., v. United States, 9 Cir., 1955, 225 F.2d 642. The Supreme Court reversed, 1957, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354, vacating the judgment of this court and that of the Court of Appeals. The cases were remanded to this court with instructions (352 U.S. at page 321, 77 S.Ct. at page 377) "* * * to determine the sufficiency of the allegations of the complaints * * * to impose liability on a private person under the laws of the State of Washington."

Further hearing of the motions to dismiss on the allegations of the complaints was not sought. By several pretrial conferences the many issues in both cases were framed and clarified in pretrial orders superseding all former pleadings. At the instance of counsel for all parties and in their company the court made an extensive two-day tour of the entire area of the fire visiting and inspecting every place of particular significance later referred to in the evidence. Damages have been stipulated at a total of $300,266.31 for plaintiffs Arnhold, et al, and at $895,000 for Rayonier Incorporated. Trial of all liability issues in both cases has been completed. The facts pertaining to liability as they now appear, either by agreement of the parties in the pretrial orders or from findings on the evidence produced at the trial, are fully stated in Findings of Fact entered by the court with the filing of this opinion. Such Findings, constituting the controlling statement of the court's determination of facts,1 are detailed and lengthy. Only the salient facts found will be mentioned herein.

At all times pertinent to this litigation the United States was the owner of substantial tracts of forest land on the Olympic Peninsula, including section 30, Township 30 North, Range 10 West, Willamette Meridian, within the Soleduc District of the Olympic National Forest. Prior to and effective during the summer

166 F. Supp. 378
of 1951 the Forest Service, with lawful authority so to do by 16 U.S.C. § 572, had entered into a "cooperative agreement" with the State of Washington under RCW 76.04.400 whereby the Forest Service undertook to protect certain designated lands, including said section 30, against fires and to take "immediate vigorous action" to control all fires occurring within the protected area. All of the land covered by the Forks fire prior to September 20, 1951 and most of plaintiffs' property burned thereafter was within the area for which the Forest Service had assumed fire protection responsibility, and such fact was known and relied upon by plaintiffs

In 1937 the common carrier Port Angeles and Western Railroad Company, hereafter called PAW, entered into a conditional sale contract for the purchase from the United States of a railroad and railroad right of way running generally in an east-west direction between the towns of Forks and Port Angeles and passing through section 30. Under the terms of the contract the vendor United States, during the executory term of the contract which includes the period involved in this litigation, retained title to the railroad property including the right of way. Right of inspection thereof was reserved to the United States. Forfeiture at the option of vendor was provided for in the event of vendee's default in any of the conditions of the contract. One such condition was compliance by vendee with all state and federal fire laws and regulations. PAW, now in bankruptcy reorganization, was in financial difficulties in August of 1951 and had been for some years prior thereto. For that reason portions of its right of way had been permitted to fall into substandard condition in that weeds, grass and brush of various sizes and types grew near and between the tracks, about 25% of the track ties were rotten, and discarded rotten ties had been left on the right of way within a few feet of passing trains.

The spring and summer of 1951 were among the driest on record in the Soleduc District. Due to below normal rainfall and lower than normal relative humidity burning conditions in August, 1951 were severe. In a forest closure notice published by the Forest Service for the period July 2 through September 15, 1951 the Soleduc River area was described as a region of extra fire hazard.

Midday on August 6, 1951 heated metal or sparks from a PAW locomotive, eastbound with a train load of logs, ignited a series of small spot fires along the PAW right of way. It is not alleged by plaintiffs nor is there evidence showing that the release from the engine of fire igniting material was due to negligence. One of the fires originally started at a point on the right of way in section 30 almost due south of a settlement known as Heckleville. This particular spot fire eventually grew into the conflagration which gives rise to this litigation and will be referred to as the Heckleville spot fire. All of the other August 6 fires were extinguished that day before they caused any material damage.

At about 12:30 p. m. on August 6 the Forest Service lookout at North Point on a high peak north of Heckleville reported to Snider Ranger Station of the Forest Service the sighting of smoke arising from a spot fire on government land in or near the PAW right of way in section 35, Township 30 North, Range 11 West, Willamette Meridian. Section 35 is immediately west of section 30 wherein the Heckleville fire started. To the scene of the fire reported at 12:30, district ranger Floe of the Forest Service promptly dispatched in a radio-equipped panel truck his entire immediately available fire suppression force, consisting of five men equipped with hand firefighting tools, under control of assistant district ranger Evans. At 1:00 p. m. the lookout reported the smoke of the Heckleville spot fire to Floe. Meanwhile the PAW train crew, aware of at least one of the fires burning on the right of way, had stopped at Fibreboard Camp #1 (about 2 miles east of Heckleville) intending to sidetrack its loaded train and return the locomotive, which carried firefighting hose and equipment,

166 F. Supp. 379
to the scene of the fires. However, when the crew attempted to back the train on to a siding it was discovered that a broken equalizer bar had so lodged itself against the wheels of the locomotive as to make reverse travel impossible

At about 1:30 p. m. Floe, having been informed by the PAW general manager of the inability of the PAW locomotive to reverse its course, was able to contact Evans by radio and advise him of the Heckleville fire. At that time Evans and the suppression crew were still in action on the first reported fire and about 2 miles distant along the right of way from the initial site of the Heckleville spot fire. At 2:10 p. m. Floe alerted State of Washington warden MacDonald of the adjacent Beaver state forestry district to stand by ready to send assistance. At 2:30 p. m. Evans and 3 men, having travelled about 5 miles by truck and foot and after wading the Soleduc River, arrived at the Heckleville spot fire and reported its dimensions to Floe who immediately requested assistance from MacDonald. By 3:00 p. m. the fire was spreading and spotting ahead of the main body of fire beyond control of the men and equipment at the scene. A Rayonier locomotive,...

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5 cases
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