Here's one for your civil procedure mavens. In TrinCo Investment Co. v. United States, No. 2012-5130 (July 18, 2013), the Federal Circuit reversed the Court of Federal Claims' dismissal for failure to state a claim of two California property owners' takings lawsuit.
The case involved the federal government's response to the "Iron Complex" fires in Northern California. According to the complaint, the Forest Service intentionally lit fires on the plaintiffs' properties in order to reduce unburned timber which might fuel the Iron Complex fire. The Forest Service fires destroyed hundreds of acres of timber, valued at approximately $6.6 million. The plaintiffs claimed that the Iron Complex fire would not have burned their land, and sued in the CFC for compensation for the taking. The CFC dismissed, holding that it was not plausible under Rule 12(b)(6) that this was a taking, because the "doctrine of necessity" absolved the Forest Service as a matter of law.
The Federal Circuit reversed. While the "necessity defense" applies in some circumstances, the court held that it never has been applied to absolve the government of all takings liability just because its actions were undertaken in the course of fighting a fire:
While it is true that the Supreme Court has recognized that there are circumstances in which the doctrine of necessity protects the Government from the requirement that it provide compensation for the taking or destruction of property committed to stop a fire, see Bowditch, 101 U.S. at 18–19, the CFC’s decision to extend the doctrine of necessity to automatically absolve the Government’s action in any case involving fire control stretches the doctrine too far.
Slip op. at 5. Flashback to Torts I class: we first learned of the doctrine of necessity from that famous California Supreme Court decision Surocco v. Geary, 3 Cal. 69 (1853), in which the court held that Geary, the Alcalde of San Francisco, was not liable in tort for the "blowing up with gunpowder, and destroying [plaintiff's] house and store, with the goods therein" in the course of fighting "a public confligration then raging in the city of San Francisco." The court held that plaintiff's building was doomed anyway, and entered judgment for Geary.
Back to TrinCo. The Federal Circuit held that "certain prerequisities must be met before the doctrine of necessity can be applied to absolve the Government of a duty to compensate a party for lost property." Slip op. at 5. There must be both "imminent danger" and "an actual emergency giving rise of actual necessity." Id. The opinion details several interesting cases illustrating these two requirements (a big fire in Boston, the destruction of oil facilities in the Philippines during WWII to prevent them falling into enemy hands, damage to a store caused by the police response to a suspect taking refuge there).
The court rejected the Government's argument that any action it takes in response to a fire is automatically absolved from takings liability. The court concluded by noting that TrinCo's complaint does not show that the Iron Complex fire created an "imminent danger" and an "actual emergency," and that "[i]t is certainly plausible that the Iron Complex fire did not pose an imminent danger or actual emergency necessitating the destruction of such a sizable portion of TrinCo’s property." Slip op. at 9. "In the case below there are legitimate questions as to imminence, necessity, and emergency," and the CFC should not have dismissed the case.
Contratulations to Matthew Dowd for the win.
Trinco Investment Co. v. United States, No. 2012-5139 (Fed. Cir. July 18, 2013)
