Rayonier Incorporated v. United States

PETITIONER:Rayonier Incorporated
RESPONDENT:United States
LOCATION:Congress

DOCKET NO.: 45
DECIDED BY: Warren Court (1956-1957)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 352 US 315 (1957)
ARGUED: Dec 04, 1956
DECIDED: Jan 28, 1957

Facts of the case

Question

  • Oral Argument, Part 2: Rayonier Incorporated v. United States – December 04, 1956 (45)
  • Oral Argument, Arnhold v. United States – December 04, 1956 (47)
  • Audio Transcription for Oral Argument, Part 2: Rayonier Incorporated v. United States – December 04, 1956 (45) in Rayonier Incorporated v. United States
    Audio Transcription for Oral Argument, Arnhold v. United States – December 04, 1956 (47) in Rayonier Incorporated v. United States

    Audio Transcription for Oral Argument, Part 1: Rayonier Incorporated v. United States – December 04, 1956 (45) in Rayonier Incorporated v. United States

    Earl Warren:

    Number 45, Rayonier Incorporated — Incorporation, Petitioner, versus United States of America.

    Mr. Marion.

    Lucien F. Marion:

    May it please this Honorable Court.

    This is a suit under the Federal Tort Claims Act asking for damages caused by a forest fire in 1951 which damages are alleged to have been caused by the negligence of the Forest Service.

    I might call Your Honors attention at this point that the fact that Number 47 which follows this case immediately is a companion suit being by other plaintiffs arising out of the same fire.

    The case is here on a challenge to the sufficiency of the complaint to state facts upon which a claim may be based.

    The District Judge in Tacoma held that they sustained a motion to dismiss and the Court of Appeals affirmed.

    Under the circumstances, all of the allegations of the complaint must be accepted as true and construed in a light, the most favorable plaintiff.

    Federal Tort Claims Act makes the United States liable for the negligent acts and omissions of its employees under circumstances where the United States if a private individual would be liable claimant under the law of the place where the acts and omissions occurred.

    Section 2680 of Title 28 contains the exceptions to the waiver of the immunity.

    No one of those exceptions is here involved nor urged by the Government.

    Particularly, the discretionary function exception is not involved, as all acts and omissions complained of were at the operational level.

    It has been helpful to us in our consideration of this case and in our presentation of it to ask ourselves this question and I offer it because I think it will also be helpful to Your Honors.

    Let us assume that the facts here were exactly transposed that the United States with the plaintiff, that Rayonier Incorporated was the defendant that the acts and omissions complained of were those of Rayonier.

    Is there any reason in fact or in law why the positions could not be transposed in all material respects?

    And if so, would Rayonier be liable to the Government?

    Since Rayonier, he’s a private individual.

    Then if it would be liable, it would follow that — by that test, the United States is liable.

    This fire started on the Olympic Peninsula on August 6, 1951.

    It started on land which the defendant owned, had control of and free of unrestricted access to.

    These are the allegations of the complaint which I am now recounting.

    It started when fire or sparks were thrown from the passing locomotive into accumulations of inflammables on the right of way in the adjoining property, both Government owned and controlled.

    It — from the spot far stage, it spread to a 60 — 60-acre carrier were it was controlled for about a day and then jumped into a large area of cut-off logged-off lands about 1600 acres in area.

    It was contained and controlled in that 1600-acre area on August 11th.

    It continued to burn in a small reform in this logged-off area until the early morning hours of September 20th.

    In the early morning hours on that day, I think around two or three, winds carried as far south of the 1600-acre area into a joining slash, young growth and virgin timber.

    That caused the fire which burned an area, roughly 20 miles in an east-west direction and up to five miles in a north-south direction.

    After the fire broke away on the 20th of September, there was nothing anybody could do about it and no negligence is claimed from that occasion on.

    Negligence is asserted on behalf of the — on the part of the Forest Service, both before the fire ever started because of the fire hazardous conditions and practices carried on, on this Government owned and controlled land.

    Negligence is claimed and failure to eliminate or extinguish the fire immediately in the spot fire stage, again at the 60-acre stage and again during the 1600-acre stage.

    Lucien F. Marion:

    There were adequate men and equipment and water available at all times to extinguish the fire, the Forest Service, and let’s say this too.

    Immediately, upon the outbreak of the fire on August 6th, the Forest Service was notified.

    They immediately stepped in, assumed supervision, direction and control of the fire fighting at all times thereafter.

    But during this whole period from August 6 to September 20th, the Forest Service actively took part in the supervision, direction and control of the fire fighting activities.

    This was known to petitioner and others in the area.

    And the petitioner and others relied upon the Forest Service having been induced to rely upon by their announced position and relied upon the Forest Service to conduct its chore in a prudent manner.

    It is highly important, Your Honors, that you have in mind at all times the importance of the practical operation and the physical facts here.

    I am somewhat concerned that the Court of Appeals apparently did not appreciate the significance of it and its importance in the part that the Forest Service plays here and the character of its activities.

    First, have in mind that this forested area on the Olympic Peninsula is vast in timber and vast areas of cutover lands and that the Government is by far the largest owner.

    The Government’s ownerships are scattered throughout and intermingled with private ownerships, so that you cannot go very far in one direction up there without running into government land and government timber which is under the jurisdiction of the Forest Service.

    The Forest Service and the private timber operators there are essentially in the same business that is the timber business.

    The complaint alleges this timber was held by the Government with pecuniary gain and profit.It is sold by the — under Forest Service jurisdiction to private enterprise.

    A large part of the Forest Service activities, in fact, the bulk of it has to do with the development of timber sales, necessary appraisals, the conduct of sales, the engineering required in laying out the sales, laying out roads, conducting the sales and then supervising the logging of the timber in the course of those sales and the construction of roads and so on.

    Forest Service also has other duties such as they maintain some forest camps.

    They give information to recreations and so on.

    Now, the Forest Service in common with all the other timber operators there are naturally concerned about the fire.

    The Forest Service, however, just like the timber operators, does not in itself maintain a fire department.

    It has relatively few employees, relatively little equipment and neither the Forest Service nor any other operator has sufficient equipment or men of which to cope with a major fire.

    However, because of this, the Forest Service and the private industries recognized that cooperation is necessary.

    If I own a track of timber here, I am concerned that fire, about any fire starting on my land or immediately close to my land which threatens my timber.

    We recognized that it would be uneconomical for each to maintain a complete fire department and it is not necessary because in that area where the timber industries are the main source of livelihood, everyone will respond willingly, men will serve in fire fighting activities, people will furnish their equipment.

    Now, to carry out this battle against the common enemy, both the Forest Service and private industries have what they call a fire suppression plan.

    That fire suppression plan contains a list of the persons available to fight fires, the equipment to available to fight fires and how those persons can be reached and brought to the scene of the fire.

    That is the type of plan of the Forest Service has.

    Is that joined in by the private owners?

    Lucien F. Marion:

    Your Honor, it’s not a matter of joining in.

    I mean Rayonier will have a list of Forest Service employees.

    It will have a list of ex-company’s employees and so and so, (Inaudible) contractors and employees and the list of their equipment where they’re located.

    It occur — fire occurs on Rayonier’s land, Rayonier will step in —

    But there’s no — there’s no association of (Voice Overlap) —

    Lucien F. Marion:

    There’s no association, Your Honor.

    The point is that if Rayonier were party on this land as the fire had started, Rayonier would send its men there and they would take charge and they would direct it.

    And they would follow Rayonier’s plan to call in all the men and equipment from our neighbors as well as our own to supervise this and fight it.

    And that is the case with the Forest Service here.

    Those are the facts.

    It’s this forest.

    There is this fire suppression plan and the fact that they do not maintain a fire department.

    Let me also point out that under the statute, 16 United States Code 5 — 51, I believe, it is cited in our brief.

    The Forest Service is authorized to engage in fire or to take steps necessary to protect the public forest from fire depredation.

    No place in the statutes to refine their authorization to maintain a fire department for the public at large.

    Forest Service is also authorized to cooperate with the State and private industries.

    But the cooperation which I have just described, which is necessary, and that’s the basis for this so-called cooperation.

    May I also point out that the State of Washington has sets standards of good forestry practices for private industries and all timber owners, those standards being reflected both from the statutes and common law and they prescribed certain minimum standards to reduce, eliminate or minimize the fire hazard in forest areas.

    Those standards may to a stranger seem high but they obviously are not because the timber industry has operated successfully under them for some 70 years.

    Now, this brings us to — with that factual background, Your Honors, District Judge Boldt —

    Well, what — what do those standards that are applicable here?

    Lucien F. Marion:

    Well, they say that it should be unlawful to permit accumulations of land clearing or logging debris, slash on your land to be —

    Are those applicable to this case?

    Lucien F. Marion:

    Yes, Your Honor.

    There are a number of standards, also the operation of trains without certain training —

    Hugo L. Black:

    Operations of what?

    Lucien F. Marion:

    Trains, locomotives.

    Earl Warren:

    Is it your position, Mr. Marion, that — that anyone who joins in, in the fighting of these fires is liable for any — to help his neighbors is liable for any negligent manner in which he fights the fire?

    Lucien F. Marion:

    Gracious no, Your Honor.

    No, sir.

    But if I step in to fight a fire and I may have responsibilities for fighting that fire starting from several sources, if I step in, undertake the act and assumed direction and control, then — and I induce reliance upon my assumed position then I am bound to that course of conduct which any man in that position is bound.

    There’s one other factual thing about which —

    Earl Warren:

    Well, what is this?

    If it is, there’s liability assumed under this loose arrangement you have here of all your neighbors coming to your assistance or mutual aid — aid program.

    And suppose under — under that any given situation, one man takes a leadership and — and it takes to organize the firefighters.

    Earl Warren:

    He does something in a negligent manner.

    Is he liable for — for the results of his negligence?

    Lucien F. Marion:

    I say yes, he is and no — no reason why he should not be.

    And if he fails to come when you call for him, he is liable in your view?

    Lucien F. Marion:

    There is no duty to respond to a call by someone, Your Honor.

    Only if does respond then he must make no errors.

    Lucien F. Marion:

    He is bound by — that same guides of prudent conduct as anyone else.

    We must not be confused here, Your Honor, in the — what might be negligence under emergent conditions.

    That’s not involved here.

    And in that connection, I wish also to point this out to Your Honors.

    For the 40 days and 40 nights during which this fire burned the 1600-acre area, there was hardly any rain.

    In fact, there had been — in fact, there’s no rain for period of 4 months prior to that time.

    During that period of time, Forest Service took no effort to seek out and extinguish the fire.

    Although, it was known that in these dry periods, the prevailing winds are northeasterly, they are dry winds, the humidity was low and in the lee of this 1600-acre area were all these vast stands of virgin timber which are endangered by any fire not properly handled.

    This was maintained by the district ranger only on a patrol basis and only during the daytime.

    After the normal quitting time of the day, there was no one on duty watching this area.

    Also, it is significant that just one week before the breakaway on September 20th, fire actually did blow out of the sparks in this area and jumped the fire alarms.

    That it so happened, there were men on duty at that time and they were able to extinguish that fire.

    All of these conditions and situations were known to the district ranger.

    The consequences were foreseeable.

    Now Your Honors, District Judge Boldt had before him at this time, the case of Dalehite versus United States decided in 1953.

    It was greatly perplexed and said before that case, he would hold a complaint sufficient to state the cause of action.

    He reasoned this way.

    His Forest Service employees are employees of the Government.

    Therefore, they are public employees.

    They were fighting fire.

    Therefore, they were public firemen.

    The Court of Appeals likewise rested its decision upon the Dalehite case in most respects.

    I want to urge upon, Your Honors —

    They made some preliminary conclusion, didn’t it, under state law?

    Lucien F. Marion:

    I beg your pardon?

    They say it made some preliminary conclusions under state law.

    Lucien F. Marion:

    It deals with other facets of this under state law, Your Honor.

    What I’m suggesting is that if the conclusions had been different as to the duty of the United States under a state law by — the Forest Service, liability might have been predicated without getting into the Dalehite problem at all, might it not?

    Lucien F. Marion:

    Not as I read the opinion of the Court of Appeals, Your Honor, and I had not intended to get into that phase but — but I would like to say this.

    That under the reasoning of the Court of Appeals, they assumed that — had there been negligence in their duty under state law because of these conditions prior to the fire and the conduct before the breakaway.

    The Court of Appeals said in effect that even though there’d be negligence in the Forest Service at that point, they become immune from such — from liability for subsequent negligence by putting on their firemen’s hats and proceeding then from the status of public firemen.

    I wish to point out and urge the reason why Dalehite is not applicable in the first instance.

    There, the Coast Guard was charged apparently with negligence, precise nature which is not clear from the opinions.

    But at any rate, it is clear that the Coast Guard did not supervise or undertake the direction of the fire fighting at the Texas City fire or did they induce reliance on others that they would so fight the fire or supervise it and act prudently.

    The local authorities there were in charge of the fire.

    In the case at bar, the Forest Service was the actor.

    It did take over supervision and did induce reliance.

    Second, in the Dalehite case, there was no government property involved.

    (Voice Overlap) — before or after the breakaway?

    Lucien F. Marion:

    I beg you pardon.

    Before or after the breakaway?

    Before the breakaway?

    Lucien F. Marion:

    Forest Service stepped in immediately after the fire started on August 6th, Your Honor, and maintained —

    I mean — I mean the first fire.

    Lucien F. Marion:

    That’s correct.

    I mean it’s the same fire actually burning —

    Same fire?

    The first phase of it?

    Lucien F. Marion:

    At the first phase of it on August 6th when it broke out, that is when the Forest Service stepped in and it continued in that role at all times thereafter.

    In Dalehite, there was no government property involved.

    No government ships on fire, no government docks, whereas in the case at bar, the Forest Service participation in fire fighting was directly associated with the ownership of government timber and was for the direct benefit of the timber.

    Thirdly, as we read the Dalehite case, there was no duty established on the Coast Guard and duty is an essential element of actionable negligence.

    Whereas in the case at bar, the Forest Service had duties standing from several sources including that of the actor or volunteer who induces reliance and also as a landowner.

    Next, in the — as we understand the Dalehite facts, the Coast Guard do not even get into the act of fire fighting and that it was only about an hour between the time that the fires first broke out in the time of the terrific explosion which caused — caused the damages.

    Lucien F. Marion:

    Here, the Forest Service was in this from the beginning.

    They had adequate time to control the fire.

    Now lastly, the Forest Service employees were not public firemen.

    Their duties were associated with the administration of government timber.

    They had no authority to act, otherwise, and in connections with the administration of government timber.

    That should be compared to the situation with this public firemen immunity as normally announced and that is the City Fire Departments where they are maintained for the benefit of one and all in the city to protect any persons, all persons and property in the city, not associated with city-owned property.

    And those cases which the public firemen immunity doctrine is announced.

    Then they associate that with a governmental function then services for the benefit of the public at large.

    Now, we come to the influence of the case of Indian Towing Company against the United States decided by this Court about a year ago.

    Felix Frankfurter:

    Mr. Marion, I do not like —

    Lucien F. Marion:

    Yes?

    Felix Frankfurter:

    — to interrupt the course of your argument, but perhaps, you can tell me this.

    I’ve got issue (Inaudible) that the scope in your brief referring to you and the Government don’t come as an issue except the negligence.

    In other words, you think you have to get Dalehite out of the way.

    The Government says they don’t reach the Dalehite case and talk about Dalehite as they come to it.

    Now, why is there that difference of conception of the safety controversy in the case?

    I assume the Government doesn’t reach Dalehite which means that the Government is within the exception or limitation of what went on before it (Inaudible) and argues and I take it to have argued extensively in the beginning that it’s mainly right.

    But since you don’t reach Dalehite, you on the other hand, since you have to get Dalehite out — off the track and then you have a clear — a clear overhead.

    I’m adverting to the question that I think is explicit (Inaudible) Justice Harlan.

    I don’t mean to have — in case the course of your argument, but why is that so?

    Why should there be such an essential difference?

    I mean (Inaudible) to the Government in view as to what it is we are facing with?

    Lucien F. Marion:

    The reason for the difference, Your Honor, lies in the Government’s failure to face up to the factual situation of the status of Forest Service employees and the Government as a property owner here.

    That — the facts which I have described in which are contained in the complaint paint that picture.

    Now, frankly Your Honor, I might disagree with the necessity for the Dalehite pronouncement in connection with the facts of that case.

    But I do think that the facts are so dissimilar that that is not controlling law in the case at bar.

    Insofar as the philosophy of the Dalehite case, I’ve been pronouncing it Dalehite.

    I don’t know which is correct, Your Honor, if you’ll excuse me.

    Felix Frankfurter:

    There is not — they’re the same, which ever it is.

    Lucien F. Marion:

    Correct.

    Lucien F. Marion:

    Indian Towing, announced by this Court about a year ago, establishes several things which are very pertinent to this case.

    First, it rejects municipal corporation law as not applicable to the administration of the Federal Tort Claims Act.

    The public firemen immunity theory is definitely a child of municipal corporation law.

    It is found nowhere else in the basis of immunity stems from the fact that the cases say that fire fighting is a governmental function.

    These fire departments are maintained for the benefit of one and all of public’s function.

    From that theory, the city cannot be held on the doctrine of respondeat superior for the negligence of its firemen.

    Second, Indian Towing establishes that the public function or governmental character of an employee’s activities is immaterial.

    Now, that is consistent with many holdings under the Federal Tort Claims Act and it’s hard to justify immunity of the Forest Service as being a public engagement in light of the holdings of liability of the United States for negligence of its employees.

    And say the conduct of lighthouses, the operation of military vehicles, the operation of military airplanes, operation of airport controlled towers, Coast Guard rescue services, even the classic example cited as the type of thing for which the Government should be liable, namely, the negligence of a male truck driver.

    That certainly is in a public function or governmental in character.

    It — lastly, Indian Towing establishes that where the Government undertakes to act, whether you call it a volunteer, an actor, a good samaritan or by what meaning.

    If he undertakes to act and induces reliance, he is then bound to act prudently.

    And if he is negligent in the conduct to that activity, then he must pay for the consequences of his negligence.

    Now, Your Honors, if we reverse the situation of the parties here and there’s no reason why Rayonier might not have found itself and precisely the same situation, then I say, Rayonier would have been liable and I have yet to hear from the Attorney General, to whom we have opposed this question repeatedly, would Rayonier have been liable or not?

    If it would, then it follows because the Government’s liability is the same as Rayonier’s would be.

    It follows that the Government is liable.

    Of the remaining two minutes I have, Your Honors, I’d like to reserve Mr. Justice.

    May I ask just —

    Lucien F. Marion:

    Yes, indeed, sir.

    — one question I — I have a question.

    I don’t know anything.

    I have here the question that the Forest Service may — one of its chief responsibilities in fighting the fire or forest fires.

    Lucien F. Marion:

    Your Honor, I —

    Does that apply to this group that it was during the Forest Service?

    Lucien F. Marion:

    I believe Your Honor’s impression is quite incorrect.

    But the percentage of time, the amount of dollars involved are (Voice Overlap) —

    What are these (Voice Overlap) — towers I see around every place where —

    Lucien F. Marion:

    I beg your pardon.

    These towers where a man would sit and watch the fires, are they Forest Service?

    Lucien F. Marion:

    They maybe maintained by the Forest Service.

    Lucien F. Marion:

    They maybe maintained by estates.

    There are even private watchtowers.

    You — you don’t consider fire fighting in the forest as one of the essential activities of the Forest Service.

    Lucien F. Marion:

    Not in the sense —

    Not as a public fireman.

    Lucien F. Marion:

    No, sir.

    And their — their presence there and their activity is not there in the sense which protecting anybody and everybody.

    And that’s the essential part of this mixed ownership as — as mixed up pattern ownership and the interest which each timber operator has in the same end result.

    I assume it was quite contrary out west of the Forest Service — I don’t know what portion of their budget is devoted to fire fighting but so far as (Inaudible) is a very important function that they formed —

    Lucien F. Marion:

    There’s no —

    — every forester as if some of them had to (Inaudible)

    Lucien F. Marion:

    Well, Your Honor, there is no question —

    Drop them in from planes, it’s very highly organized.

    Lucien F. Marion:

    It is a — an important function but it is neither a major function nor is it a function which it performs except in connection with the administration of federal timber.

    But the necessary cooperation of all timber owners is the essential part.

    Harold Burton:

    Well, you draw the distinction that in between protecting their own grounds from fire and protecting other people’s grounds from fire?

    Lucien F. Marion:

    Yes, I do, Your Honor.

    Harold Burton:

    The other fireman insofar as the national forests are concerned but not fireman for keeping at large.

    Lucien F. Marion:

    Mr. Justice Burton, their activities are all associated with the administration of federal timber, but that can be done properly only by concerning itself with others just as the other owners concerned themselves with federal timber.

    Harold Burton:

    But no more.

    And no more than I would — I mean they have the same relation to others that others have to them.

    I mean —

    Lucien F. Marion:

    That is correct.

    Except, federal ownership is so extensive and scattered in so many places that hardly a fire can occur or does not threaten federal timber but private parties themselves.

    They have been in fight fires.

    They take over control and it will be the case of Forest Service employees are standing by and watching others to supervise this but lending such help as they maybe called upon.

    It’s completely a reciprocal, cooperative fire department if in the aggregate both public and private employees are to be regardless as a fire department.

    That’s the only way in which they could be so regard it.

    My time has expired.

    Thank you, sir.

    Earl Warren:

    Mr. Doub.

    George Cochran Doub:

    If the Court please.

    The fire fighting on private lands is explicitly authorized by federal statute.

    And the reports of the Department of Agriculture show that the Forest Service is fighting — has been fighting 30 — between 10,000 and 11,000 independent and separate fires a year.

    The daily average is 30.

    And on the basis of that, there are 30 fires being fought today.

    Now, if the Court please, this case presents clearly for a decision, the major question whether the traditional immunity of public fireman should be applied to the Forest Service of the United States which is in — in fighting fires on public and private lands.

    Now, you’ll find on page 35, in paragraph 35 of Rayonier’s complaint and that’s page 26 of the record.

    There are 15 specifications of negligence and of these 13 alleged negligence by the Forest Service in fighting this fire.

    So this is a question of national importance and it’s raised for the first time here under the Tort Claims Act.

    Now, the remaining questions, if the Court please, as to the possible liability of the United States as an owner of forest land in permitting its property to be substandard conditions that is not within the public fireman immunity principle.

    It involves merely the interpretation of local state laws applied to private property owners and — so the major issue here and the issue that is a particular concerned to the Government is the — whether Dalehite and the immunity principle established as to the Coast Guard there shall be applied to the Forest Service —

    Felix Frankfurter:

    But if one could find — but if one finds that Washington Law wouldn’t allow recovery against the private sector or — or non-United States defendants then we don’t have to reach this major question on which I can well understand the Government would like to get a ruling but —

    George Cochran Doub:

    Well, Your Honor —

    Felix Frankfurter:

    (Voice Overlap) — that satisfies the trial if we’re ruling on the court ground that there’s an error around it.

    George Cochran Doub:

    Well, Your Honor, we believe that this question is clearly flushed under this pleading.

    Felix Frankfurter:

    Clearly what?

    George Cochran Doub:

    It’s clearly flushed here.

    It’s unavoidable and it should be met.

    Felix Frankfurter:

    But if your first part —

    Well —

    Felix Frankfurter:

    — is (Inaudible) then — then it is avoidable, it isn’t here.

    George Cochran Doub:

    Well, perhaps —

    Felix Frankfurter:

    (Inaudible) I don’t understand.

    I’ve read your brief but I’ve read your outline, your (Inaudible)

    George Cochran Doub:

    Pardon.

    Well, let me proceed —

    Felix Frankfurter:

    All right.

    George Cochran Doub:

    — Your Honor.

    Could I — before you leave that subject in amplifying what has just been suggested and what I intended to raise from my earlier question from your adversary.

    This is a thing that puzzles me a little bit.

    If this fire started on the so-called railroad portion, the railroad easement by sparks flying over into the Government land, right?

    George Cochran Doub:

    And so construed by the Court of Appeals.

    Right.

    And one of the counts of negligence was that the Government was responsible from the emission of those sparks from the so-called easement part of the land.

    George Cochran Doub:

    You mean from the locomotive stock?

    Form the locomotive stocks.

    And the lower court of the — the lower court held that as a matter of Washington Law, the United States would not be responsible for the — what happened on the railroad tracks because the railroad had an easement that under Washington Law, United — the Government would not be liable, right?

    George Cochran Doub:

    Yes, Your Honor.

    Now, here’s — here’s what puzzle me about it.

    When I came to the briefs in the case that’s following you, it seemed to me that there was a great question of facts as to what the precise relationship was between the United States and the railroad.

    Because your brief as does the brief of your adversaries and particularly in the other case, their reply brief refers to a lot of very long — a long series of transactions or rather complicated series of transactions, none of them where in record here.

    There are matters of record apparently in the files but it occurred to me that before you reach — before you can say that the lower court was right as to Washington Law in relation to the duty of the United States to this easement, there was a question of fact as to whether or not the relationship was that — of the United States, was that of — of a grantor of an easement and there was a question of fact that is out there.

    Now, that’s my problem in a nutshell.

    George Cochran Doub:

    Well — well, Your Honor, the — the briefs here, particularly in the reply brief was on hold, has raised that question emphatically, but I should like to point this out.

    That the Court of Appeals construed the allegations of this complaint and the representations of counsel made in their briefs and argument its meaning that the railroad had a railroad easement over the Government lands.

    As the railroad will — on the dominant state and the position of the Government was that — of the holder of a servient interstate.

    Now, the main thrust of the — of the arguments in the main briefs of the appellants, both Arnhold and Rayonier presupposed that to be the fact.

    And I might say that no where in this amended complaints that Arnhold file — filed four of them did they ever say the railroad operated a locomotive on tracks over the public domain.

    They alleged throughout.

    They — they refer throughout their pleadings to a railroad right of way which in all the dictionaries is deemed equivalent to a railroad easement.

    Now having alleged there was right of way of the railroad across the Government property they — they now submit that perhaps that that’s wrong.

    Now, they did — they did query it in the Court of Appeals that the main thrust to their argument there, in their briefs and argument and as it is here was that this was — certainly, it was a railroad easement of right of way, one of the effects of that.

    Now obviously, this Court didn’t take jurisdiction of these cases to pass on such a question as that.

    Felix Frankfurter:

    A question that decide the point.

    If you — at least — I don’t understand why you argue, the way you do in your brief and why you rely on the case by (Inaudible) a case that I happened to like very much (Inaudible) state which the law of negligence I know of, otherwise other aspects of the law.

    I don’t see why the Government presents me with this brief.

    It makes me worry about the LeRoy case.

    Didn’t you say all that is an important question?

    Let’s get to the big (Inaudible) arbitrary to hold the Government liable for fire fighting?

    Felix Frankfurter:

    I don’t understand that.

    George Cochran Doub:

    Well, Your Honor, let me go on with my argument and perhaps I’ll be clear in argument than in the brief.

    I hope so.

    Felix Frankfurter:

    (Inaudible)

    George Cochran Doub:

    I would try to be.

    Felix Frankfurter:

    I don’t like you to be led astray thinking this is nicely orderly private company case.

    And then I’m told I must decide with the fire fighting and the special unit.

    George Cochran Doub:

    But to conclude Justice Harlan on that point, we say you should take this case as the Court of Appeals construed the pleadings and as they interpreted the Washington Law.

    In accordance with your established policy which you would had to in numerous cases of — of saying that decision of the — of the Circuit judges particularly as in this case were one of those Circuit judges practiced for 40 years in the State of Washington, Judge Boldt, you should accept that.

    Now, the allegations of negligence here are — are of importance.

    All of the negligent acts imputed to the Forest Service relate to the quantum of effort in fighting a fire.

    They are all negative acts of nonfeasance.

    There are no affirmative acts at all.

    They are not even acts as alleged negligence in getting equipment to the scene of the fire or taking up fire truck or a fire automobile having an access on the way.

    The allegations are that the Forest Service, although they conceive we put out five of these fires, they say the sixth fire got away from us.

    And we didn’t use enough water and enough equipment and enough men to extinguish that fire before it leaves the plaintiff’s property.

    Now, I’d like to point out, Your Honors, that this is the bedrock of the immunity, public fireman doctrine.

    In other words, there has been a distortion of that immunity in many state cases.

    I think it’s been applied too far.

    It’s been applied to some cases to the negligent operation of a fire truck on the way to the scene of a fire, but we are not dealing with that.

    We’re dealing with the quantum of effort which we say should be clearly covered, and why?

    Because in the case of every fire, it can be charged if you use 10 men, you should have used 20 men.

    If you use 50 men, you should have been — used a 100 men.

    And it is true that if we used more men and used more water and used more supplies, that fire would have been put out sooner.

    So, liability here on the ground that the immunity principle is inapplicable would mean litigation we think in the case of every fire that these people are fighting daily.

    Hugo L. Black:

    May I ask you if assuming what you said that the immunity does not apply with the statement of facts that you just referred to or just for finding of negligence, could you could then put out with more men and more water and so forth?

    You said that.

    George Cochran Doub:

    I — I was generalizing, Your Honor, that that’s true in any fire.

    All — in any fire if you use more men and water —

    Hugo L. Black:

    But I — I —

    George Cochran Doub:

    — if you’re —

    Hugo L. Black:

    I thought you said it could have been done, that you had — you could have done it.

    George Cochran Doub:

    Well, I — I wasn’t talking about this specific fire, Your Honor.

    Hugo L. Black:

    You weren’t talking about the — if — the facts in this case?

    George Cochran Doub:

    No, I was theorizing.

    Hugo L. Black:

    Yes.

    George Cochran Doub:

    That — that the charge that’s made here is the charge that can be made in the 10,000 fires a year that we fight.

    Hugo L. Black:

    Well, if they could be proven I suppose and there’s no immunity that might be enough to —

    George Cochran Doub:

    That’s right.

    Hugo L. Black:

    — to find negligence?

    George Cochran Doub:

    Yes, yes.

    Hugo L. Black:

    That’s right.

    George Cochran Doub:

    If there’s no immunity —

    Hugo L. Black:

    That’s right.

    George Cochran Doub:

    — on as such a duty.

    It would mean that we’re — we’re going to have litigation and a review by a court in the case of each of these fires.

    Hugo L. Black:

    Is that the reason you think if there’s immunity, the question is — must be that it’s reached?

    George Cochran Doub:

    Well, I think it’s clearly defined.

    Now, there’s an aspect of it that Mr. Justice Frankfurter mentioned at the end, it may not be reached.

    And I’m coming to that in just a moment.

    Hugo L. Black:

    All right.

    Felix Frankfurter:

    I’m not afraid to fire fight.

    George Cochran Doub:

    [Laughs] — The appellant contends the Forest Service should be denied this public fireman immunity principle upon the following grounds.

    There are five.

    First, the Forest Service is primarily a caretaker of timberlands of the Government.

    Secondly, the Forest Service has many other extensive duties than fire fighting.

    Three, they refer to a cooperative agreement in their brief.

    And four, the Government was under a special statutory or common law duty under Washington Law to fight fires.

    And five, they say Indian Towing Company should be treated as overruling Dalehite.

    I like to just say a few words on each of this.

    William J. Brennan, Jr.:

    Mr. Doub, may I ask you?

    Do I understand that the Government is drawing a distinction as regards the allegations between nonfeasance and affirmative in this issue?

    George Cochran Doub:

    No — no — no Your Honor.

    That’s not involved here.

    I was emphasizing that all these allegations of negligence about fire fighting in these complaints go to the quantum of effort.

    William J. Brennan, Jr.:

    What was that?

    George Cochran Doub:

    And they — and they — they are — it is nonfeasance and there — there is no affirmative acts.

    Now, I recognized that you can have in some cases an act of nonfeasance can be just dangerous as an affirmative act of negligence.

    But it’s not just nonfeasance.

    It relates to the quantum of effort.

    And we say that that is the hardcore of the immunity —

    William J. Brennan, Jr.:

    Well, does that — does that apply as fully to subdivision (n) at page 29 failing to carryout and put into effect the fire suppression plan?

    I gather your adversary’s description of that plan is active.

    George Cochran Doub:

    Well, they don’t define what the plan is, Your Honor.

    So, they don’t even define what the plan is and I don’t — as I recall, they’re maybe mistaken.

    William J. Brennan, Jr.:

    Well, I thought they have — in the paragraph 18, this makes a reference to paragraph 18 which purports to give us a description of the plan.

    George Cochran Doub:

    I don’t — I don’t believe it does there, Mr. Justice Brennan.

    William J. Brennan, Jr.:

    Well, in any event if there is a plan and that’s what is embraced in this allegation of the kind that was described for us which I gather is the fact they — the cooperative effort among all owners was the Government or otherwise.

    George Cochran Doub:

    Well, if it comes down to the fact that they — that as described by Mr. Marion that everybody had list of people that were in the area working and where they could be reached and — and what his point is, if we didn’t call enough men —

    William J. Brennan, Jr.:

    Well, he doesn’t —

    George Cochran Doub:

    — because of the fire —

    William J. Brennan, Jr.:

    Well, he doesn’t —

    George Cochran Doub:

    — we call the men —

    William J. Brennan, Jr.:

    That’s not his allegation.

    His — the allegation is failing to carryout and put into effect the fire suppression plan.

    Now —

    George Cochran Doub:

    Well — well, in any event —

    William J. Brennan, Jr.:

    Now, I — I what I put — I’ve been wondering is whether assuming that your characterization of the other allegations as merely allegations of supposed nonfeasance —

    George Cochran Doub:

    Yes.

    William J. Brennan, Jr.:

    — omissions to do something —

    George Cochran Doub:

    Yes.

    William J. Brennan, Jr.:

    — is accurate.

    Would it be as accurate of the allegation of failure to put to the effect the fire suppression plan, assuming now that the details of it is that Mr. Marion described them for us?

    George Cochran Doub:

    Well, I will — I will —

    William J. Brennan, Jr.:

    Would they not be entitled to an opportunity to prove of the extent under that allegation to which that plan had not been carried out?

    George Cochran Doub:

    Your Honor, we say that and we’re still entitled to the immunity of public firemen if it’s applied.

    The whole question is does the immunity apply?

    And that’s what I’m directing my remarks to.

    Of course if it doesn’t apply, they stated the case of negligence.

    William J. Brennan, Jr.:

    Well, what I’m trying to get to is would — could the immunity apply, perhaps you’re arguing the answer quickly, yes it would.

    If in fact, there existed that kind of plan and —

    George Cochran Doub:

    Yes, I know.

    William J. Brennan, Jr.:

    — the Government backed down or failed to go through with it?

    George Cochran Doub:

    Yes.

    I would say the proper scope of the immunity principle would protect the Government from any charges and negligence as to its fire fighting activities.

    Allegations we fail to put plans and operation, we failed to use some other plans.

    William J. Brennan, Jr.:

    Even though it had gone into such a plan with knowledge necessarily that those —

    George Cochran Doub:

    That’s right.

    William J. Brennan, Jr.:

    — who joined with it would be relying upon the Government to do the things that the Government undertook thereby to do.

    George Cochran Doub:

    That’s right.

    And we rely on the traditional law of — of all the states of this country and participated in —

    William J. Brennan, Jr.:

    Of all?

    George Cochran Doub:

    Well, I think so, Your Honor.

    I don’t know —

    William J. Brennan, Jr.:

    I think you might exclude one.

    George Cochran Doub:

    Oh, now, except one, and then the others that occurred, Your Honor.

    But my impression is that it is the established law in this country and municipality shall not be held liable for fire fighting that they shall be deemed in the operations of their fire departments and their efforts to suppress, discourage, immune from liability.

    And the basis of the reasoning was stated extremely well in Dalehite where — where you sounded up and that you would not stating anything new, but the Court was stating what have been said time and time again.

    In Dalehite, you said the act did not create new causes of action where none existed before.

    It did not change the normal rule that an alleged failure of carelessness of public fireman does not create private actionable rights.

    George Cochran Doub:

    And we went on to say to impose liability for the alleged nonfeasance of the Coast Guard would be like holding the United States liable in tort for failure to —

    William J. Brennan, Jr.:

    Is that principle of your knowledge was — have ever been applied to this kind of arrangement, this fire suppression command (Voice Overlap) —

    George Cochran Doub:

    This is the first time that a case has come up involving forest fire.

    William J. Brennan, Jr.:

    Well, apart from that.

    I mean this kind of arrangement that under which —

    George Cochran Doub:

    No.

    William J. Brennan, Jr.:

    — for any other purpose —

    George Cochran Doub:

    No — no, Your Honor.

    I don’t think it has and knowing it has, the theory of those cases was —

    Earl Warren:

    We’ll — we’ll recess now, Mr. Doub.

    George Cochran Doub:

    Thank you.