The Court of Federal Claims recently dismissed the complaint of several landowners seeking compensation under the Fifth Amendment for the physical taking of private timber located on land that is completely surrounded by the Shasta-Trinity National Forest. Plaintiffs claimed that the Forest Service “took” their property when, in an effort to manage a group of wildfires on the forest, it intentionally lit backfires on their private timberlands and, as a result, destroyed valuable timber.

The Fifth Amendment does not prohibit the taking of private property, but places a condition on the exercise of that power, i.e., the payment of just compensation by the government. Here, the Forest Service argued that the government may, in certain instances, destroy private property to prevent greater harm without incurring an obligation to provide compensation under the Fifth Amendment.

In dismissing the plaintiffs’ case, the court found that the federal government’s liability for takings may be limited by “background principles of law” such as the law of nuisance (which allows the government to prevent a property owner from using his own property so as to damage the lives and property of those around him) or a state’s police power (which similarly allows a state government to take action for the general welfare of those within its borders). Advancing this argument a step further, the court also found that among such background principles of law is the common law doctrine that in cases of actual emergency, including where a fire threatened an entire community, the sovereign can, with immunity, destroy the property of a few people in order to save the lives and property of many. Relying heavily on this common law doctrine, the court ruled that because the timberland owners had identified “no facts from which the Court could plausibly conclude that lighting the backfires was not part of the Forest Service’s firefighting” (i.e., presumably for the public good), the Forest Service was not liable to compensate the landowners.

Note: The decision has no implication for a landowner who brings a tort action when the government’s wrongful or negligent actions result in harm to private property. However, the ruling does raise several concerns. That is, although the common law principle that the sovereign may use private property to fight fire in order to protect a community has been repeated in several U.S. Supreme Court decisions, none of the cases involved a Fifth Amendment taking due to the government’s intentional lighting fires on private property, or its equivalent. Moreover, the court also ignored the fact that the common law doctrine relied on has been substantially criticized in another Supreme Court case (authored by Oliver Wendell Holmes). Furthermore, the forest fires which the Forest Service sought to contain had started on National Forest lands on June 20th, but the Forest Service did not begin to light backfires on plaintiffs’ private property until July 1 and continued to do so over a ten-day period. These facts would seem, at least in part, to remove the emergency circumstances that justified the common law doctrine. Finally, regardless of the background principles of the common law as they pertained to the monarch in Great Britain, as a practical matter, the very purpose of the Fifth Amendment is to provide compensation to someone whose property is used by the government for the benefit of the public as a whole, such that the public and not just one individual should bear the burden.