            In the United States Court of Federal Claims
                                  No. 11-857 L

                            (Filed February 28, 2017)

 * * * * * * * * * * * * * *          *
 TRIN-CO INVESTMENT                   *
 COMPANY and                          *
 KATHLEEN G. ROSE,                    *
 TRUSTEE of the V & M ROSE            *    Takings; Necessity Defense for
 TRUST - MARITAL TRUST,               *    Fire-Fighting Actions On or
                                      *    Near National Forest; Reliability
                  Plaintiffs,         *    of Expert Opinion; Genuine
                                      *    Disputes of Material Fact
            v.                        *    Preclude Summary Judgment.
                                      *
 THE UNITED STATES,                   *
                                      *
                  Defendant.          *
 * * * * * * * * * * * * * *          *

     Wesley R. Higbie, Sausalito, CA, for plaintiff. Matthew J. Dowd,
Washington, DC, of counsel.

     Jessica M. Held, United States Department of Justice, with whom was John
Crudden, Assistant Attorney General, Washington, DC, for defendant.

                     ________________________________

                          OPINION AND ORDER
                     ________________________________

BUSH, Senior Judge.

     This takings case is before the court on cross-motions for summary
judgment filed under Rule 56 of the Rules of the United States Court of Federal
Claims (RCFC). The summary judgment motions have been fully briefed; oral
argument was held, at plaintiffs’ request, on February 14, 2017. For the reasons
stated below, the parties’ motions, which attempt to resolve the question of the
government’s liability, if any, for fire damage to plaintiffs’ timberland, are denied
in their entirety.

                                     BACKGROUND1

I.     Relevant Facts

       Plaintiffs (collectively, Trin-Co) own five non-contiguous parcels of
timberland that are the subject of the takings claims set forth in the complaint.
The names of these parcels are Squaw Camp, Price Creek, Mud Springs, Eltapom
Rose, and V&M Bottoms. Am. Compl. ¶¶ 10-14. These properties range in size
from approximately 714 acres to approximately 57 acres. Id. These five parcels
are either completely surrounded by, or adjacent to, Shasta-Trinity National Forest
(the National Forest) in Trinity County, California. Id.

       In the summer of 2008, a number of wildfires collectively known as the Iron
Complex fires or the Iron-Alps Complex fires threatened the National Forest as
well as private lands and communities in Trinity County. The two fires most
pertinent to the damage on plaintiffs’ properties were the Cedar Fire and the Eagle
Fire. The Cedar Fire burned from June 20-21 to July 30, 2008 and extended
through 25,373 acres of land. Pls.’ Facts ¶¶ 18, 20; Def.’s Facts ¶ 6. Most of the
affected acreage, 24,465 acres, was in the National Forest, but 907 acres of private
land were burned as well. Pls.’ Facts ¶ 20. The Eagle Fire burned from June
20-21 to September 1, 2008 and extended through 32,059 acres of land. Pls.’
Facts ¶¶ 18, 20; Def.’s Facts ¶ 6. Most of the affected acreage, 28,591 acres, was
in the National Forest, but 2076 acres of private land were burned as well. Pls.’
Facts ¶ 20.

      The United States Forest Service directed the fire-fighting efforts against
the Cedar and Eagle Fires. A technique used to fight these fires was containment
through indirect attack, where containment lines were established some distance


       1
        / The court makes no findings of fact in this opinion. The facts recounted here are taken
from the parties’ filings to provide context for the resolution of the parties’ cross-motions.

                                                2
from the lead edge of the advancing wildfires. To render these containment lines
more effective, the Forest Service burned forested land in some locations, whether
the land in question was part of the National Forest or privately owned, in order to
reduce the opportunity for the advancing wildfire to breach the containment line.

       Where defensive fires in these indirect attacks were set by the Forest
Service, the practice is referred to as backburning or firing. There is no dispute
that the Forest Service fired all of plaintiffs’ V&M Bottoms parcel and a portion of
plaintiffs’ Mud Springs parcel. A dispute remains, however, as to the overall
extent of the backburning of plaintiffs’ timberland by the Forest Service.

II.   Procedural History

       Plaintiffs’ takings claims, filed December 7, 2011, were initially dismissed
by this court for failure to state a claim upon which relief can be granted. TrinCo
Inv. Co. v. United States, 106 Fed. Cl. 98, 102 (2012) (Trin Co I), rev’d, 722 F.3d
1375 (Fed. Cir. 2013) (Trin Co II). The trial court reasoned that the government
was not required to compensate plaintiffs for actions taken to prevent the spread of
a wildfire. Id. Upon appeal, that dismissal was reversed and remanded. Trin Co
II, 722 F.3d at 1381.

       The United States Court of Appeals for the Federal Circuit disagreed with
the trial judge’s assessment of takings jurisprudence. The Federal Circuit held:

                    In the proceedings below, the Government
             advanced, and the [trial court] accepted, the position that
             any act undertaken by the Government in connection
             with fighting a fire is covered by the necessity defense.
             Therefore, the court found that TrinCo’s complaint could
             not support a claim for relief because the complaint
             acknowledged that TrinCo’s property was taken by the
             Government while fighting the Iron Complex fire of
             2008.

                   [H]owever, every taking by the Government in the
             name of fire control does not automatically qualify as a
             necessity sufficient to satisfy the requirements of the

                                          3
            necessity defense. The necessity defense is just what it
            says it is: a defense. It has always required a showing of
            imminent danger. The use of the word “necessity” in the
            title is no accident. The defense requires both an actual
            emergency and an imminent danger met by a response
            that is actually necessary. Not every seizure of a private
            citizen’s property will qualify.

Trin Co II, 722 F.3d at 1380. Upon remand, the parties engaged in discovery. On
June 23, 2015, this case was randomly assigned to the undersigned judge.
Discovery was completed by June 20, 2016.

      Nearing the close of the discovery period, the parties were prepared to seek
summary judgment on the issue of the government’s liability for plaintiffs’ takings
claims. The court was not opposed to the filing of summary judgment briefs,
although the susceptibility of the parties’ dispute to resolution upon summary
judgment was uncertain at that time. Order of Apr. 21, 2016, at 6 n.3. Hundreds
of pages of briefs, proposed findings of uncontroverted fact, and exhibits were
eventually filed with the court in support of the parties’ cross-motions for
summary judgment. As discussed below, the parties dispute almost every fact that
is material to plaintiffs’ takings claims and the government’s necessity defense
against those claims.

III.   Questions Presented

       The principal question before the court is whether the government’s defense
to plaintiffs’ takings claims is amenable to resolution on summary judgment. The
government asserts its defense under the aegis of the doctrine of necessity, i.e.,
that any damage to plaintiffs’ timberland that might otherwise be considered a
taking is excused and rendered non-compensable by the actual necessity of the
fire-fighting efforts employed by the Forest Service. A secondary and threshold
issue is whether plaintiffs have persuaded the court that the expert opinions of two
of the government’s wildfire experts must be excluded under the reliability test
established by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993). There is also a controversy regarding the extent of the Forest Service’s
backburning of plaintiffs’ five properties.



                                         4
                                  DISCUSSION

I.    Standard of Review

       “[S]ummary judgment is a salutary method of disposition designed to secure
the just, speedy and inexpensive determination of every action.” Sweats Fashions,
Inc. v. Pannill Knitting Co., 833 F.2d 1560, 1562 (Fed. Cir. 1987) (internal
quotations and citations omitted). The party moving for summary judgment will
prevail “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” RCFC 56(a).
Cross-motions for summary judgment “are not an admission that no material facts
remain at issue.” Massey v. Del Labs., Inc., 118 F.3d 1568, 1573 (Fed. Cir. 1997)
(citing United States v. Fred A. Arnold, Inc., 573 F.2d 605, 606 (9th Cir. 1978)).
The parties may focus on different legal principles and allege as undisputed a
different set of facts. Id. “Each party carries the burden on its own motion to
show entitlement to judgment as a matter of law after demonstrating the absence
of any genuine disputes over material facts.” Id.

        A genuine dispute of material fact is one that could “affect the outcome” of
the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “The
moving party . . . need not produce evidence showing the absence of a genuine
issue of material fact but rather may discharge its burden by showing the court that
there is an absence of evidence to support the nonmoving party’s case.”
Dairyland Power Coop. v. United States, 16 F.3d 1197, 1202 (Fed. Cir. 1994)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). A summary judgment
motion is properly granted against a party who fails to make a showing sufficient
to establish the existence of an essential element to that party’s case and for which
that party bears the burden of proof at trial. Celotex, 477 U.S. at 324.

      The United States Supreme Court has instructed that “the mere existence of
some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be
no genuine issue of material fact.” Anderson, 477 U.S. at 247-48. A nonmovant
will not defeat a motion for summary judgment “unless there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict for that party.” Id. at
249 (citation omitted). “A nonmoving party’s failure of proof concerning the
existence of an element essential to its case on which the nonmoving party will

                                          5
bear the burden of proof at trial necessarily renders all other facts immaterial and
entitles the moving party to summary judgment as a matter of law.” Dairyland, 16
F.3d at 1202 (citing Celotex, 477 U.S. at 323).

II.    Analysis

       A.        Admissibility of Expert Testimony Proffered by the Government

       Plaintiffs argue that the expert opinions of Mr. Phil Perkins and Mr. Charles
E. Stanich, two of the experts relied upon by the government in this case, must be
excluded under Daubert and Rule 702 of the Federal Rules of Evidence (FRE
702).2 In essence, plaintiffs assert that Mr. Perkins and Mr. Stanich have not
provided reliable expert testimony that will assist the finder of fact. Among other
critiques, plaintiffs insist that the testimony of defendant’s experts fails to meet the
multi-factor reliability test3 plaintiffs derive from Daubert:



       2
           / According to this rule of evidence:

                 A witness who is qualified as an expert by knowledge, skill,
                 experience, training, or education may testify in the form of an
                 opinion or otherwise if: (a) the expert’s scientific, technical, or
                 other specialized knowledge will help the trier of fact to understand
                 the evidence or to determine a fact in issue; (b) the testimony is
                 based on sufficient facts or data; (c) the testimony is the product of
                 reliable principles and methods; and (d) the expert has reliably
                 applied the principles and methods to the facts of the case.

Fed. R. Evid. 702.
       3
        / The multi-factor reliability test in Daubert can be summarized in a number of ways,
including this version:

                 (1) the testability of the hypothesis; (2) whether the theory or
                 technique has been subject to peer review and publication; (3) the
                 known or potential rate of error; and (4) whether the technique is
                 generally accepted.

Libas, Ltd. v. United States, 193 F.3d 1361, 1366-67 (Fed. Cir. 1999) (citing Daubert, 509 U.S.
at 593-94).

                                                   6
             (1) whether the expert’s theory can be or has been tested
             or challenged in some objective sense, or whether it is
             instead simply a subjective, conclusory approach
             incapable of being reasonably assessed for reliability;
             (2) whether the theory has been subject to peer review
             and publication; (3) the known or potential rate of error
             of the theory; (4) the existence and maintenance of
             standards and controls; and (5) whether the technique or
             theory has been generally accepted in the scientific
             community.

Pls.’ Mot. at 29-30.

       Defendant rejects this critique of its experts, stating that the Daubert factors
are “non-definitive” and that the Daubert inquiry is a “‘flexible one.’” Def.’s Mot.
at 22-23 (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999)). The
court agrees that the Daubert factors are non-definitive and that the Daubert
inquiry is a flexible one. See, e.g., Kumho Tire, 526 U.S. at 151 (stating that
Daubert “made clear that its list of factors was meant to be helpful, not definitive”
and noting that the Daubert factors “do not all necessarily apply even in every
instance in which the reliability of scientific testimony is challenged”). As the
gatekeeper of reliable expert testimony the trial judge “should consider the
specific factors identified in Daubert where they are reasonable measures of the
reliability of expert testimony.” Id. at 152. “In other cases, the relevant reliability
concerns may focus upon personal knowledge or experience.” Id. at 150.

       Given that a trial court has latitude in crafting a test to gauge the reliability
of expert witnesses, id. at 152, and given the clear precedent stating that the
Daubert factors are not definitive, id. at 151, this court rejects a rigid application
of the Daubert factors here. First, as the government notes in its reply brief, two
of plaintiffs’ own experts, like Mr. Perkins and Mr. Stanich, do not appear to
satisfy all factors of the Daubert test for reliable expert opinion. See Def.’s Reply
at 18-19. Plaintiffs’ emphasis on the Daubert factors focuses too much, in the
court’s view, on scientific publications as a measure of the reliability of both
defendant’s and plaintiffs’ experts.

      Second, personal experience and qualifications underlie the testimony of

                                            7
defendant’s experts. Mr. Perkins and Mr. Stanich offer expert opinions on
wildfire behavior and wildfire fire-fighting, topics which have been an integral
focus of their careers. Nothing in the recitation of the experience and
qualifications of Mr. Perkins and Mr. Stanich suggests that their opinions on these
topics are unreliable simply because these gentlemen have not published peer-
reviewed articles in scientific journals. Under Kumho Tire, defendant’s experts
are sufficiently reliable to proffer expert opinions in this case, even if their
opinions do not satisfy every Daubert factor.

       Plaintiffs also argue that the opinions of Mr. Perkins and Mr. Stanich are too
subjective to be reliable. Pls.’ Mot. at 31-34; Pls.’ Reply at 5-9. The court would
agree with plaintiffs that completely subjective expert opinion that is incapable of
being tested for validity would fail the reliability test set forth in Daubert and
Kumho Tire. See, e.g., Kumho Tire, 526 U.S. at 150-52 (noting that the reliability
inquiry examines whether the expert displays intellectual rigor and an acceptable
analytical foundation for his or her opinion). But the court cannot agree with
plaintiffs that the expert opinions of Mr. Perkins and Mr. Stanich are unreliable
because these opinions are purely subjective.

        As defendant notes, Mr. Perkins and Mr. Stanich relied on their experience
and qualifications, as well as their analyses of extensive documentary and physical
evidence, for their expert opinions. Def.’s Mot. at 24; Def.’s Reply at 17-19. The
conclusions in their expert reports cannot be equated to “I know it when I see it,”
as alleged by plaintiffs. See Pls.’ Mot. at 34. While it is true that their opinions
include terms which have a subjective component, such as “extreme fire
behavior,” see id. at 33, the presence of such terms, in the circumstances of this
case, goes more to the weight of the expert opinion presented by defendant, not to
its reliability. Cf. Ark. Game & Fish Comm’n v. United States, 736 F.3d 1364,
1378 (Fed. Cir. 2013) (holding that a trial court could reject a Daubert challenge
to expert opinion which was based on personal experience rather than science, and
that it was not an abuse of discretion to weigh competing evidence on the topic).
Having reviewed the expert reports challenged by plaintiffs, as well as the
excerpts of deposition testimony elicited from Mr. Perkins and Mr. Stanich, the
court finds no reason to reject their opinions as unreliable under Daubert or FRE
702.

      The court, in its gatekeeper role, has closely examined the expert reports of

                                         8
Mr. Perkins and Mr. Stanich to determine if they are reliable. Precedent requires
that the court assure itself that expert testimony is reliable. See, e.g., Libas, Ltd. v.
United States, 193 F.3d 1361, 1367 (Fed. Cir. 1999) (holding in that case that
either “a Daubert-style analysis” or “some other equally searching” analysis was
required). The reports of Mr. Perkins and Mr. Stanich are by no means
“conclusory,” as alleged by plaintiffs. Pls.’ Reply at 5-6, 9. Each of the reports
presents thorough and detailed analyses of issues central to the resolution of
plaintiffs’ claims. Given the extensive experience of Mr. Perkins and Mr. Stanich,
as well as the depth of the analysis presented in their reports, the court cannot
exclude their expert reports as unreliable.

      Finally, the court addresses two additional challenges to the reliability of the
government’s experts raised by plaintiffs. First, plaintiffs seek to exclude the
expert opinions of Mr. Perkins and Mr. Stanich because, in their view, neither
expert addresses the topic of necessity, in the context of a necessity defense to a
takings claim. Pls.’ Mot. at 31; Pls.’ Reply at 6. As defendant notes, however, an
expert opinion may assist the trier of fact even if the expert does not opine on the
ultimate legal issue in the case. Def.’s Reply at 16 (citing Smith v. Ford Motor
Co., 215 F.3d 713, 718 (7th Cir. 2000)). The court’s analysis of the government’s
necessity defense will involve a multi-pronged inquiry, and the opinions of Mr.
Perkins and Mr. Stanich are relevant to the component parts of that inquiry.

       Second, plaintiffs allege that Mr. Perkins, in particular, did not conduct an
independent analysis of the wildfires and fire-fighting at issue in this case but
merely rubber-stamped the Forest Service’s actions. Pls.’ Mot. at 32; Pls.’ Reply
at 6-8. The court considers this to be an inaccurate summary of the two expert
reports submitted by Mr. Perkins. Although Mr. Perkins does conclude that Forest
Service actions taken to combat the Iron Complex fires were appropriate, his
opinions are grounded in documentary evidence and his analysis of that evidence.
See Def.’s Exs. 1, 15. Defendant also notes that Mr. Perkins’ conclusions were
based, in part, on a visit to the areas burned by the Cedar and Eagle Fires. Def.’s
Mot. at 24; Def.’s Reply at 17. Although plaintiffs may disagree with Mr. Perkins
as to the appropriateness of the fire-fighting efforts of the Forest Service, this
disagreement with his conclusions does not show that the expert opinions of Mr.
Perkins are unreliable.

      For all of the above reasons, plaintiffs’ reliability challenge to the expert

                                            9
opinions of Mr. Perkins and Mr. Stanich must be rejected. The opinions expressed
by Mr. Perkins and Mr. Stanich are not required by binding precedent to satisfy all
Daubert factors. Under close examination, the reports of these two experts show
intellectual rigor and an acceptable analytical foundation. Kumho Tire, 526 U.S.
at 150-52. The court will consider the opinions of Mr. Perkins and Mr. Stanich in
its resolution of the parties’ cross-motions for summary judgment.4

       B.      Necessity Defense and Disputed Material Facts

               1.      Legal Standard

       The parties seek summary judgment on the government’s liability, if any,
for fire damage to plaintiffs’ land during the Iron Complex fires. Central to this
dispute is an application of the holding of Trin Co II to the facts developed by the
parties through discovery. Trin Co II rejected any “automatic[]” application of the
necessity defense to a takings claim where the fire damage to private timberland
was caused by the government’s fire-fighting in response to a wildfire. 722 F.3d
at 1380. The Federal Circuit noted that, as of 2013, “there [wa]s no case law on
point” for the subject matter. Id. at 1378.

        At the outset, the court notes that Trin Co II is silent as to whether the
necessity defense raised by the government here is susceptible to resolution on
summary judgment. Takings cases are typically fact-specific and often turn on
facts that are developed at trial. See, e.g., Yuba Goldfields, Inc. v. United States,
723 F.2d 884, 887 (Fed. Cir. 1983) (“The fact-intensive nature of just
compensation jurisprudence to date, however disorienting in other contexts,
argues against precipitous grants of summary judgment.”). The only doctrine of
necessity case involving fire-fighting cited in the Federal Circuit’s opinion was a
case resolved not on summary judgment but after trial. Bowditch v. City of
Boston, 101 U.S. 16, 17-18 (1879). In the absence of any clear direction from the
Federal Circuit as to whether the validity of the necessity defense raised in this
case may be resolved on summary judgment, the court applies the general
standard:



       4
         / The court’s ruling in this regard is relevant to any pre-trial motions contemplated by
the parties. See Pls.’ Reply at 5 n.1.

                                                10
               Each party carries the burden on its own motion to show
               entitlement to judgment as a matter of law after
               demonstrating the absence of any genuine disputes over
               material facts.

Massey, 118 F.3d at 1573.

       The takings law concept to be applied here is most succinctly provided by
this statement in Trin Co II:

               The [necessity] defense requires both an actual
               emergency and an imminent danger met by a response
               that is actually necessary.

722 F.3d at 1380. The court must agree with defendant that Trin Co II offers only
“limited guidance as to the actual application of the necessity doctrine” to the facts
of this case.5 Def.’s Reply at 1. The facts produced through discovery must be
examined for evidence of an “actual emergency” and an “imminent danger” that
were “met by a response that [was] actually necessary.” Trin Co II, 722 F.3d at
1380.

       The necessity defense test set forth in Trin Co II contains two prerequisites
which, in the court’s view, are specific but somewhat subjective in their definition:
“actual emergency” and “imminent danger.” Nonetheless, during trial a judge
would weigh all evidence, conflicting or not, to determine whether these two
prerequisites of the necessity defense were present in a particular fire-fighting
scenario. It might be possible to determine on summary judgment whether a
particular period of time in the Iron Complex fires history constituted an actual
emergency and posed imminent danger, but that determination on summary
judgment would require that there be no genuine disputes of material fact. Here,
as explained below, many material facts are in genuine dispute.


       5
         / The court notes that two of the cases cited approvingly in Trin-Co II for their analyses
of the necessity defense, Customer Co. v. City of Sacramento, 895 P.2d 900 (Cal. 1995) and
Steele v. City of Houston, 603 S.W.2d 786 (Tex. 1980), are not in perfect harmony. See
Customer, 895 P.2d at 912-13 (declining to follow Steele because “[t]he opinion in Steele is
poorly reasoned and internally inconsistent”).

                                                11
       Turning to the third component of the necessity defense identified in Trin
Co II, the phrase “met by a response that is actually necessary” is not defined. See
also Trin Co II, 722 F.3d at 1380 (noting that in this case “there are legitimate
questions as to imminence, necessity and emergency”). Perhaps the words
“actually necessary” refer to a response that is appropriate in light of the
emergency and danger confronted by the fire-fighters. Another possibility is that
“actually necessary” functions as a synonym for “reasonably necessary,” a term
which finds its application in regulatory takings caselaw. See Penn Cent. Transp.
Co. v. New York City, 438 U.S. 104, 127 (1978) (stating that government action
which imposes “a use restriction on real property may constitute a ‘taking’ if not
reasonably necessary to the effectuation of a substantial public purpose”)
(emphasis added) (citations omitted). Yet another possible definition, one gleaned
from defendant’s reply brief, is that an “actually necessary” response is
synonymous with a “direct response to the imminent danger to life and property
created by the Iron Complex fires.” Def.’s Reply at 2.

       Plaintiffs’ position on the operational definition of “actually necessary” was
not made fully clear to the court until oral argument, although the headings of
relevant sections of plaintiffs’ briefs provided a preview of their position. First, in
plaintiffs’ moving brief, Trin-Co alleged that “Defendant’s Experts Acknowledge
that Alternative Actions Were Feasible, Thereby Contradicting Defendant’s
Necessity Defense.” Pls.’ Mot. at 34. Next, in plaintiffs’ reply brief, Trin-Co
asserts that “The Doctrine of Necessity is [Not] Available as a Defense . . . When
Viable, Alternative Options Exist.” Pls.’ Reply at 2. At oral argument, plaintiffs’
counsel asserted that for government action which destroys private property to be
“actually necessary,” the destructive course of action must be the only feasible or
realistic course of action available. Oral Argument Transcript (Tr.) at 2:59-3:06
PM, 3:59-4:00 PM. In the context of the Iron Complex fires, in other words,
plaintiffs argue that because there were multiple potentially effective fire-
containment strategies available, the Forest Service could not choose an
alternative which involved the backburning of private property without becoming
liable for a taking. Id.

      Plaintiffs cite no authority for their contention that ‘only when there is but
one feasible option in an emergency can there be actual necessity.’ Plaintiffs’
view of the law, based on the court’s research, appears to be an outlier. A more
common thread in necessity defense cases is a concern that the destruction of

                                          12
private property have a reasonable basis, i.e., that at the time of the emergency the
course of action chosen by the government was a reasonably tailored response to
imminent danger under the circumstances. In one such case, a treatise was cited
for this elucidation of the doctrine of necessity:

               “When immediate action is necessary in order to avert a
               great public calamity, private property may be
               controlled, damaged or even destroyed without
               compensation. Under such conditions any individual has
               the right to enter another’s land and destroy his property,
               and if he acts with reasonable judgment he is not liable
               to the owner. If the individual who thus enters and
               destroys private property happens to be a public officer
               whose duty it is to avert the impending calamity, the
               rights of the owner of the property to compensation are
               no greater.”

Short v. Pierce Cty., 78 P.2d 610, 615 (Wash. 1938) (emphasis added) (quoting 1
Nichols on Eminent Domain, 2d ed., § 96, p. 263); see 1 Julius L. Sackman,
Nichols on Eminent Domain, § 1.43[1]-[2] (3d ed. 2016) (same); cf. Miller v.
Schoene, 276 U.S. 272, 280 (1928) (sanctioning the necessity of the destruction of
cedar trees on private property to protect apple trees on private property, and
noting that the choice was “controlled by considerations of social policy which are
not unreasonable”) (emphasis added); Phoenix Assurance Co. of London v. Fire
Dep’t of Montgomery, 23 So. 843, 848-49 (Ala. 1898) (“The duty of aiding and
assisting in the prevention or suppression of conflagrations resting upon every
citizen having the physical ability for its performance, the freedom from all
liability if the necessity is actual or reasonably apparent is of the same grade and
character with that of the rendition of military service.”) (emphasis added). In the
court’s view, takings jurisprudence demands that the government’s response to an
actual emergency and imminent danger simply be reasonable in order to satisfy a
necessity defense, not that every damaged property owner must be compensated if
there are multiple feasible responses available to emergency responders.6


       6
        / Under plaintiffs’ view of the necessity defense, whenever fire-fighters have more than
one feasible fire-fighting strategy to choose from, all private property damage is compensable as
                                                                                      (continued...)

                                                13
       One of the cases cited approvingly in Trin Co II supports the court’s view
of the necessity defense, i.e., that a governmental response to an actual emergency
and imminent danger is actually necessary if it is a reasonable response under the
circumstances. The Supreme Court of Texas indicated that a city government’s
necessity defense could be valid “‘so long as the emergency is great enough, and
[the city] has acted reasonably under the circumstances.’” Steele v. City of
Houston, 603 S.W.2d 786, 792 (Tex. 1980) (quoting W. Prosser, Law of Torts
§ 24 (4th ed. 1971)). The court finds far greater support for a reasonableness
requirement than for a strict limitation of the necessity defense to those situations
where only one possible emergency response is feasible.

       The court now turns to the only judicial decision which has applied the
holding of Trin Co II to a wildfire fire-fighting situation. That case, Brewer v.
State, 341 P.3d 1107 (Alaska 2014), extensively quoted Trin Co II and embraced
the Federal Circuit’s framework for determining when a necessity defense would
excuse government-caused fire damage to private property while fighting a
wildfire.7 Id. at 1116-18. The Supreme Court of Alaska noted, first, that the
inquiry is fact-specific and will vary from case to case. Id. at 1118 n.68 (citing
United States v. Caltex (Phil.), Inc., 344 U.S. 149, 156 (1952) and Mitchell v.
Harmony, 54 U.S. 115, 134 (1851)). The Alaskan court also provided a temporal
framework for the inquiry:

              This inquiry should not devolve into an after-the-fact
              evaluation of the wisdom of the fire-fighting policies and
              tactical choices that preceded the taking . . . . Whether a
              taking is necessary must be judged at the time the taking

       6
         (...continued)
a taking, no matter how great the emergency and no matter how imminent the threat to life and
property. Oral Argument Transcript at 2:59-3:06 PM, 3:59-4:00 PM. According to plaintiffs’
view of the law, therefore, even if all feasible options at the time involve damage to private
property, the necessity defense cannot apply and the government must always pay compensation,
even if the fire-fighters have made a reasonable, or even, in hindsight, the optimum choice,
among many. Plaintiffs’ necessity defense interpretation is extreme and unsupported by Trin-Co
II or any of the cases cited therein.
       7
       / The Brewer court left it to the trial court’s discretion to choose between trial or
summary judgment proceedings in order to resolve the necessity defense dispute in that case on
remand. 341 P.3d at 1118.

                                              14
             occurs. The essence of the doctrine is that the
             government is acting “under pressure of public necessity
             and to avert impending peril” and chooses to damage
             private property as the lesser of two evils. It is that
             choice, in that moment, for which necessity may provide
             a defense.

Id. at 1118 & n.69 (quoting Customer Co. v. City of Sacramento, 895 P.2d 900,
910 (Cal. 1995), a case also relied upon by the Federal Circuit in Trin Co II).

       While Brewer is not precedent controlling upon this court, the court finds
therein two important guides for determining when a necessity defense excuses
damage caused by government agencies fighting wildfires. First, the inquiry is
fact-specific and must take into account the particular facts of each case. Brewer,
341 P.3d at 1118 n.68. Actual necessity, therefore, is determined on a case-by-
case basis. Id.; see also Trin Co II, 722 F.3d at 1379 (quoting Caltex, 344 U.S. at
156, for the proposition that each necessity defense case “‘must be judged on its
own facts’”).

       Second, the court adopts Brewer’s temporal framework for the necessity
defense analysis. “Whether a taking is necessary must be judged at the time the
taking occurs.” Brewer, 341 P.3d at 1118. This approach is consistent with
Trin Co II and highly persuasive. Cf. Trin Co II, 722 F.3d at 1380 (exploring, in
part, “legitimate questions of imminence, necessity and emergency” by examining
the extent of wildfire damage to the National Forest “at the time TrinCo’s property
was burned”). Thus, the necessity of an “actually necessary” response, id., must
be measured at the time of the actual emergency and imminent danger, not in
hindsight.

       The court therefore construes the necessity defense elucidated in Trin Co II,
as it applies to wildfire situations, in the following manner. Two prerequisites, an
actual emergency and imminent danger, must be present to mount a successful
necessity defense. If those two prerequisites are satisfied, the court turns to the
“actually necessary” component of the necessity defense. For this inquiry, the
government’s response to a wildfire will be analyzed on a case-by-case, fact-
specific basis. In addition, the necessity of the agency’s fire-fighting response will
be measured at the time of the actual emergency and imminent danger, not in

                                         15
hindsight, and must take into account the information available to the fire-fighters
at that time. Finally, the fire-fighting decisions of the agency which damaged
private land must have been reasonable under the circumstances.

             2.     Genuine Disputes of Material Fact

       The court has closely examined the parties’ briefs, proposed uncontroverted
facts, exhibits and their contentions of fact presented at oral argument. Although
the primary and arguably narrow focus of these documents and contentions of fact
is on the government’s liability, if any, for fire damage to plaintiffs’ properties, the
array of disputed material facts is daunting. In the interest of brevity, the court
will discuss only a representative number of these disputes of material fact here.

                    a.     Did the Iron Complex Fires Constitute an Actual
                           Emergency?

      The parties dispute whether the Iron Complex fires constituted an actual
emergency that would support the government’s necessity defense. Defendant
consistently maintains that any government-caused damage to plaintiffs’
properties occurred in the context of an actual emergency:

             [T]he facts relative to the wildfires that made up the Iron
             Complex – the location and number of the fires, the dry
             conditions, terrain, and available resources – fully
             support the conclusion that those wildfires presented an
             imminent danger and actual emergency that gave rise to
             the actual necessity of the Forest Service’s actions to
             limit and prevent their further spread.

Def.’s Reply at 2. Defendant points to documentary evidence and expert reports in
support of its characterization of the Iron Complex fires as an actual emergency.
Def.’s Facts ¶¶ 1-5. Plaintiffs dispute the dryness of the conditions and the
steepness of the terrain. Pls.’ Resp. to Def.’s Facts ¶¶ 1, 4. Plaintiffs also dispute,
generally, that any takings of their trees occurred in emergency conditions. See
Pls.’ Reply at 2 (stating that “the evidence does not establish that an ‘actual
emergency’ existed at the properties when Defendant took its actions”); Tr. at
3:50-3:55 PM.

                                           16
       One of plaintiffs’ experts concluded that the “spread rate” of the Cedar and
Eagle Fires was “small in comparison to other recent fires in California.” PX 17,
at P0250. Another of plaintiffs’ experts concluded that the fire behavior of the
Iron Complex fires was “moderated” by weather conditions and “high fuel
moistures.” PX 20, at P0315. At oral argument, plaintiffs’ counsel asserted that
the evidence did not necessarily support a finding that an actual emergency existed
at each point in time when plaintiffs’ land was damaged. Tr. at 3:50-3:55 PM.

       The court finds that it would be inappropriate, on summary judgment, to
weigh competing evidence as to whether actual emergency conditions were
present at the time each taking is alleged to have occurred. Anderson, 477 U.S. at
255 (noting that a judge should not weigh evidence when the dispute is at the
summary judgment stage of proceedings). Although there is no dispute that a state
of emergency was declared by both the governor of California and the President of
the United States, the court finds that a genuine dispute of material fact exists as to
whether an actual emergency excused any damage the Forest Service caused to
plaintiffs’ five parcels of land. Even this question, perhaps the least hotly disputed
element of the necessity defense asserted by the government in this case, cannot be
resolved on summary judgment.

                    b.    Did Imminent Danger Threaten Life and Property?

       The parties vigorously dispute whether the Cedar and Eagle Fires posed an
imminent danger at the times of the alleged takings. Plaintiffs consistently assert
that there was no imminent danger from these fires when the Forest Service
backburned acreage on or near plaintiffs’ five parcels. See Pls.’ Reply at 2, 12, 14.
Plaintiffs rely primarily on the opinions of their expert Mr. Joe Waterman. See PX
19, at P0286, P0293, P0294, P0297; PX 20, at P0314, P0317. The United States
disagrees with the “imminent danger” assessment by Mr. Waterman. Def.’s Reply
at 2, 7-13. The government relies upon contemporaneous documentation of these
fires and upon its own experts. Id.

      The court finds that it would be inappropriate, on summary judgment, to
weigh competing evidence as to whether imminent danger was present at the time
each taking is alleged to have occurred. See Anderson, 477 U.S. at 255. There is
no dispute that the Iron Complex fires were dangerous and that lives were lost
while fighting these fires. However, the court finds that a genuine dispute of

                                          17
material fact exists as to whether, in the context of the government’s necessity
defense, imminent danger threatened lives and property at the times when the
Forest Service is alleged to have caused fire damage to plaintiffs’ five parcels of
land. For this reason, neither party can be granted summary judgment on the
“imminent danger” prerequisite for the government’s necessity defense.

                   c.     Were the Forest Service’s Backburning Actions
                          Actually Necessary?

       To review, the government’s backburning actions, in order to be
characterized as “actually necessary,” Trin Co II, 722 F.3d at 1380, must have
reasonably responded to the threat of further expansion of the Cedar and Eagle
Fires, based on information available at that time. See supra. In other words, the
backburning undertaken by the Forest Service must have been a reasonable
response in order to escape liability under the Takings Clause of the Fifth
Amendment. This analysis depends on the particular facts of the Forest Service’s
fire-fighting actions, the particular facts of plaintiffs’ properties and surrounding
geography, and the particular facts of the Cedar and Eagle Fires.

      The parties are worlds apart as to whether the Forest Service’s backburning
near or on plaintiffs’ five properties was actually necessary. Plaintiffs assert,
through expert reports, that the Forest Service did not appropriately weigh the
destruction of private property against threats to life and property from the
advancing Cedar and Eagle Fires. See PX 18, at P0273; PX 19, at P0286, P0291-
P0297; PX 20, at P0316- P0318. Plaintiffs also contend, relying on
contemporaneous documents, that the Forest Service inappropriately valued cost-
savings over the protection of private property. See Pls.’ Mot. at 1, 4-5, 36; Pls.’
Reply at 1, 4-5, 11; Pls.’ Facts ¶¶ 16, 27-29, 117; PX 22, at P0340-P0342.

       The government, on the other hand, asserts that fire-fighting resources were
limited during the summer of 2008 due to a large number of wildfires in
California. See Def.’s Mot. at 10; DX 3; DX 4. Defendant therefore argues that
indirect attack and backburning were necessary and reasonable tools used to
combat the Cedar and Eagle Fires. Def.’s Mot. at 10. The government’s experts
opine, for example, that indirect attack was often safer than direct attack during
the Iron Complex fires. DX 4, at D0172; DX 15, at D0450-D0451; DX 22, at
D0499. Defendant also asserts that the alternative fire-fighting strategies

                                          18
proposed by plaintiffs’ experts, developed after review of the record many years
after the summer of 2008, run counter to the rule in Brewer that necessity be
measured at the time of the alleged taking. Def.’s Reply at 9 (citing Brewer, 341
P.3d at 1118).

        Defendant offers an analysis of Forest Service fire-fighting activities on or
near each of plaintiffs’ five parcels, whether or not the government agrees that the
fire damage on that parcel was caused by Forest Service backburning. Def.’s Mot.
at 12-21. For the V&M Bottoms parcel, for example, the backburning was
described by defendant’s experts as safer than a direct attack and ultimately
effective in stopping the Cedar Fire which was fully contained four days later. Id.
at 13-14. For the Price Creek parcel, the government’s experts conclude that
indirect attack was safest in this area and that the containment lines were meant to
prevent the spread of the Eagle Fire into plaintiffs’ Mud Springs parcel and the
community of Big Bar. Id. at 20-21. Although not stated in precisely the
language of the court’s elucidation of the “actually necessary” component of the
necessity defense, it is clear that defendant’s evidence goes to the reasonableness
of the backburning on or near plaintiffs’ parcels. Finally, the government also
asserts that the Forest Service did not sacrifice the interests of private landowners
merely to cut costs in its fire-fighting operations. Def.’s Reply at 3-6.

      The parties’ conflicting evidence in this regard is sufficient to create a
genuine dispute of material fact. It would be inappropriate, on summary
judgment, to weigh competing evidence as to whether the Forest Service’s
backburning on or near plaintiff’s five parcels of timberland was “actually
necessary.” See Anderson, 477 U.S. at 255. For this reason, neither party can be
granted summary judgment on the “actually necessary” component of the
government’s necessity defense.

      C.     What Extent of the Fire Damage on Plaintiffs’ Five Parcels Was
             the Result of the Forest Service’s Backburning?

       Finally, it is important to note that the government raises an additional,
partial defense to liability for plaintiffs’ takings claims. Def.’s Mot. at 26-27.
This second defense is raised in the alternative and in addition to the government’s
necessity defense arguments. Id. In essence, this second defense states that for
three of plaintiffs’ properties, all fire damage was the result of advancing

                                         19
wildfires, not backburning. For the remaining two properties, the government
contends that there is disputed evidence as to the number of acres burned by
advancing wildfires, versus the number of acres burned by the Forest Service’s
backburning. Plaintiffs disagree with defendant’s contentions of fact in this
regard.

       Simply put, the parties are largely engaged in a battle of experts as to the
fire damage on plaintiffs’ properties, with a focus on the movement of the Cedar
and Eagle Fires through these areas and the extent of the impacts of the Forest
Service’s backburning. Plaintiffs rely extensively on Dr. Christopher W.
Lautenberger, while the government relies extensively on Mr. Perkins. Although
the battle is fiercely joined and supported by a great deal of evidence on both
sides, it is not amenable to resolution on summary judgement because there are
genuine disputes of material fact. The court cannot grant either party summary
judgment on this aspect of the government’s potential liability for fire damage
because there is sufficient evidence for either nonmovant to prevail. Anderson,
477 U.S. at 248-49. Neither plaintiffs nor the government is entitled to summary
judgment on the disputed factual issue of wildfire-related versus backburning-
related fire damage on plaintiffs’ properties.

                                  CONCLUSION

       Plaintiffs’ reliability challenge to the expert opinions of Mr. Perkins and Mr.
Stanich, under Daubert and FRE 702, is rejected. In addition, the evidence
presented by the parties creates a genuine dispute as to all three components of the
government’s necessity defense. Further, the extent of backburning-related fire
damage on plaintiffs’ properties remains in genuine dispute. Because genuine
issues of material fact preclude a ruling on summary judgment regarding the
government’s liability for the fire damage on plaintiffs’ timberland, the court
denies the parties’ cross-motions for summary judgment in their entirety.

      Accordingly, it is hereby ORDERED that

      (1)    Plaintiffs’ Motion for Partial Summary Judgment [as to Liability],
             filed August 23, 2016, is DENIED;

      (2)    Defendant’s Cross-Motion for Summary Judgment, filed September

                                         20
      23, 2016, is DENIED; and,

(3)   On or before March 21, 2017, the parties shall FILE a Joint Status
      Report. The status report shall state whether settlement is a feasible
      option in this case. If settlement is not viable, the report shall set
      forth the parties’ proposed agreed-upon schedule for the exchanges
      required by Appendix A, ¶ 13 and the filings required by ¶¶ 14
      through 17.


                                       /s/ Lynn J. Bush
                                       LYNN J. BUSH
                                       Senior Judge




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