In an opinion today for the U.S. Court of Appeals for the Federal Circuit, the court deals with a situation in which the U.S. Forest Service set fire to a landowner’s property in order to help prevent a forest fire from spreading. The landowner claimed that burning this particular land was not actually necessary to prevent the spread of the fire, and wants to be compensated for the burnt timber. The court decided that the lawsuit against the government could go forward, despite the government’s claim of necessity.
It has long been established under the law that the government can, for example, destroy your home, if doing so will prevent your entire neighborhood from burning down. And they don’t even have to compensate you for it: they did it out of necessity, because it would have been far worse to let all the homes be destroyed. So when the landowner sued in this case, the Court of Federal Claims held that this doctrine of necessity applied, and dismissed the case outright.
Not so fast, the Federal Circuit ruled on appeal. The property owner in this case alleges that setting fire to this piece of land wasn’t actually necessary — in other words, the fire would not have reached the land or spread beyond it. Also, it is alleged that the government could have burned more of its own land instead and had the same preventative effect. The Federal Circuit ruled that there should be some inquiry and discovery into whether these allegations are true, before simply dismissing the case. If necessity does not apply, this could be a taking of private property, which under the Fifth Amendment, requires compensation. The Federal Circuit sends the case back to the lower court so that the discovery process can go forward.
This ruling has important implications for the future. The Forest Service, going forward, will need to be prepared to justify its decisions to burn private land when controlling wildfires. With wildfires seeming to grow more frequent and more intense every year, this is no small issue. While this ruling threatens the government with litigation over difficult, literally heat-of-the-moment decisions with great consequences (potentially, human lives), it also protects landowners from potentially arbitrary and unjustified government action.
It will now be up to the lower court to balance these interests and determine whether the burning was actually justified by necessity.
