Coe v. United States

Decision Date19 August 1980
Docket NumberCiv. No. 77-900.
PartiesTheron E. COE, Thomas M. Dimmick, John T. Dimmick, Calvin N. Souther, West Coast Steamship Company, an Oregon corporation, Plaintiffs, v. UNITED STATES of America, Defendant.
CourtU.S. District Court — District of Oregon

W. A. Jerry North, Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland, Or., for plaintiffs.

Sidney I. Lezak, U. S. Atty., District of Oregon, Jonathan M. Hoffman, Asst. U. S. Atty., Portland, Or., for defendant.

MEMORANDUM DECISION

EDWARD C. REED, Jr., District Judge, Sitting by Designation.

Theron E. "Buck" Coe, and others, have sued the United States of America under the Federal Tort Claims Act 28 U.S.C. §§ 1346(b) and 2671, et seq., for damages arising on account of a fire which began on a parcel of federal land administered by the Bureau of Land Management (BLM) and located adjacent to the Deschutes River in Oregon. Plaintiffs allege that both the start and the subsequent spread of the fire to plaintiffs' adjoining lands were proximately caused by negligence of BLM employees. This fire destroyed pasturage and fences on plaintiffs' land, for which they now seek to recover damages.

The area where the fire commenced is informally known as the South Junction campsite. The campsite comprises approximately five acres and is one of the few public land access points to the river which is widely used for water recreation. South Junction campsite is situate in a very picturesque place and is found desirable by many people for use as a camping and recreation area. Access is by a BLM maintained dirt road which extends to and through the property from a nearby paved highway.

The BLM has never formally designated this area as a campground, but on the other hand has never prohibited use of it for those purposes and, in fact, has taken some steps to make the area a pleasant camping place. Trash receptacles have been placed in strategic locations for the use of campers in order to prevent litter. Two waste water facilities have been installed and at least two portable sanitary toilets have been placed on the property. Pictures of the area reveal camping sites which have just sort of grown up like "Topsy" here and there throughout the property. At least some of the campsites have "fire rings", which are simply rings or piles of stones apparently gathered in the area and used to contain camp fires. The best evidence is that these were constructed by campers. Boards on which signs can be posted have been constructed here and there on the property.

The BLM does not charge for the use of the property and while there is no affirmative effort to recruit campers, it appears that BLM has assisted in making this a very inviting spot for camping in a very beautiful country.

Because of its location adjacent to the river and the beauty of the country, it would probably be a camping ground whether or not the BLM took an interest in it or did much about it. But the efforts of the BLM appear to have considerably enhanced it for camping purposes.

The BLM does not maintain any permanent personnel in the immediate area. At the time of the fire, one BLM representative had been in the vicinity working on a recreation use study.

The question faced by the Court, then, is whether under these circumstances the BLM owes a duty to adjacent property owners to protect them against the possibility of fires which may start within the informal, but well established, camp area and then spread to adjacent properties. The Court must inquire as to what duties are undertaken by the government because it has permitted and, in fact, encouraged the use of this area for recreational purposes.

The fire in question began on July 10, 1976, in the vicinity of the various campsites. It appears to have commenced on a campsite occupied by Darrel Cook, Barbara Cook, Stanley Niblett, and Karen Koch. As best the witnesses can tell, the fire started in the vicinity of a fire ring in the Cook campsite in heavy and dry cheat grass. There had recently been a campfire in the Cook fire ring, but nothing was burning there at the time the fire began. John and Dorothy Poyner, who were camping nearby, saw the fire start and, based on the evidence before the Court, one would have to conclude that it started from a spark from the Cook fire ring or as a result of cigarette smoking by one of the occupants of the Cook campsite.

While the fire was very small in the beginning, and one witness testified could probably have been smothered with a blanket, once it started it spread quickly through the dry and combustible cheat grass which grew in abundance throughout the campground.

The fire was soon out of control, jumping the road, and eventually burning the fences and pasture grasses of the neighboring Kaskela Ranch and Green Valley Ranch. Both of these ranches were leased to Buck Co., Ltd., a limited partnership consisting of Theron E. Coe and Calvin N. Souther. According to the agreement under which the partnership was using and occupying the ranch lands, the lessee was obligated to repair burned fences and required to suffer any losses which were the result of damage by fire to pasture lands. Three-quarters-of-a-mile of fence were destroyed on the Green Valley Ranch and a like amount of fence on the Kaskela Ranch. Mr. Coe personally repaired these fences using his own material, all at a cost exceeding the amount of the claim for damage to fences made in this case. The claim for damage to fences was calculated by multiplying the length of fences damaged or destroyed by the costs per foot of repair or replacement according to established BLM figures then in use. The total claim for damage to fences was $2,180.80.

The loss of cattle feed occasioned by damage to the pasture grass was determined by Mr. Coe on the following basis. He simply endeavored to estimate, in absence of the fire, how many tons of hay would have been harvested by cattle grazing on that property and then multiplied that figure by the going rate for sale of hay in the vicinity at that time. It was estimated that the cows would have harvested 250 pounds of hay per acre and that in view of the fact that there were 550 acres damaged and unuseable, 69 tons of hay which might have been harvested were lost. The 69 ton figure was multiplied by the going sales price of hay of $72.50 per ton for a total of $5,002.50.

One may quarrel with pricing the hay in this fashion because the $72.50 per ton was based upon hay which had been harvested and probably baled with attending labor, materials and transportation costs. On the other hand, harvesting hay by having the cows eat it has its attendant overhead costs as well. There are such costs as tending to the cows, fence maintenance, supervision of the grazing, rentals for the property used, and water, all of which have related labor and materials cost. It probably costs considerably less to have the cows harvest the hay directly than to cut, bail it and feed it to them. There was evidence admitted that, based upon a cost for pasture according to rates charged by the BLM for grazing on its property, the cost of the lost pasture would be less than at a rate of $72.50 per ton. However, the simplistic method of figuring the loss which was offered by Mr. Coe, seems about as good an approach as any and establishes the amount of the loss about as well as it can be determined.

An issue has been raised in this case as to whether there has been compliance with the jurisdictional prerequisites of 28 U.S.C. § 2675(a) and 28 C.F.R. § 14.3. These statutes and rules require that a claim for damages be filed with the appropriate federal agency prior to bringing suit. They also require that where a claim is filed on behalf of another, the person signing the claim must submit accompanying proof of his authority to represent the claimant. Summary judgment has previously been entered on this basis in favor of the defendant against Thomas M. Dimmick and West Coast Steamship Company, so that they are no longer parties to the action. However, summary judgment was denied in respect to the plaintiffs Theron E. Coe, John T. Dimmick, Calvin Souther and Kaskela Ranch, Inc. It is the view of the Court that such denial of summary judgment did not necessarily foreclose the question of whether Mr. Coe had the authority to file claims in behalf of the remaining plaintiffs and otherwise complied with Government regulations pertaining to the filing of claims by one person in behalf of another. The previous rulings on the summary judgment motions determined only that summary judgment was inappropriate at that time, according to the applicable rules.

The evidence in regard to Mr. Coe's authority to present claims, however, is essentially the same as that before Judge Belloni and Judge Juba when they ruled on the previous motion. This is true because it has been stipulated that the statements made in the affidavits of John T. Dimmick, Calvin Souther and Kaskela Ranch, Inc., all of which were previously before the court, are to be treated by this Court as if the affiants had testified in open court, making the same statements as are set forth in the affidavits. The only new element, which was adduced by evidence at the trial, is the testimony of Mr. Coe himself which was heard by the Court. There, certain matters relative to his authority to file the claims were further developed. However, all in all, there was nothing substantially new or different developed at trial.

In House v. Mine Safety Appliances Co., 573 F.2d 609, 617-618 (9th Cir. 1978) the court reviewed this problem which arises where claims are filed by one person in behalf of others. The court held that a mother signing a claim on behalf of minor children need not supply accompanying proof of authority to so sign. In fact the court held that she need not even recite the fact of minority or the applicable state law which grants the authority to the mother. The...

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