     Case: 09-10104     Document: 00511053574          Page: 1    Date Filed: 03/16/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           March 16, 2010

                                       No. 09-10104                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellant,
v.

CASITA ENTERPRISES, INC.; DEXTER AXLE COMPANY,

                                                   Defendants-Appellees.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                                  (06-CV-1047)


Before REAVLEY, DAVIS, and STEWART, Circuit Judges.
PER CURIAM:*
        Plaintiff United States of America appeals the district court’s sua sponte
dismissal of its claims against the defendants for damages arising from a fire on
a national forest. We agree and vacate that order.
        This suit arises out of the Mustang Fire which was ignited on June 30,
2002 in the Ashley National Forest in Utah. An investigation of the fire revealed
that the fire started when the axle on a travel trailer owned and driven by
Atmar Davis broke. Mr. Davis continued to drive and pull the trailer. According

        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
   Case: 09-10104      Document: 00511053574          Page: 2     Date Filed: 03/16/2010

                                      No. 09-10104

to the accident reconstruction expert, friction ensued and heated components of
the wheel and axle separated from the vehicle, rolled off the road and ignited the
drought-stricken grass. The axle being dragged along the road created more
sparks which continued to ignite additional fires until Davis was able to stop.
The fire burned until July 26, 2002 and damaged over 16,000 acres of national
forest land.
      The United States filed suit to recover fire suppression and rehabilitation
costs resulting from the wildfire. Originally, the suit named Casita Enterprises,
Inc. (“Casita”), the manufacturer of the trailer, and Davis and included state and
federal claims. In the original complaint, the United States did not allege that
the lands affected by the wildfire were owned by the United States, which is
required to trigger 28 U.S.C. § 2415(b), which sets the statute of limitations
applicable to this claim.1 Defendant Casita filed a motion to dismiss on that
basis and on the grounds that the cause of action was barred by the three year
statute of limitations.     Section 2415(b) sets a general three year limitations
period for actions “founded on a tort”, but provides specifically that “an action to
recover damages resulting from fire” on lands of the United States must be
brought within six years of the time that the right of action first accrues. The
United States responded to the motion by arguing that: (1) the petition



      1
        28 U.S.C. § 2415(b) reads -
      (b) Subject to the provisions of section 2416 of this title [28 USCS § 2416], and
      except as otherwise provided by Congress, every action for money damages
      brought by the United States or an officer or agency thereof which is founded
      upon a tort shall be barred unless the complaint is filed within three years after
      the right of action first accrues: Provided, That an action to recover damages
      resulting from a trespass on lands of the United States; an action to
      recover damages resulting from fire to such lands; an action to recover for
      diversion of money paid under a grant program; and an action for conversion of
      property of the United States may be brought within six years after the
      right of action accrues, . . .

28 USC § 2415 (emphasis added).

                                              2
   Case: 09-10104    Document: 00511053574      Page: 3   Date Filed: 03/16/2010

                                  No. 09-10104

adequately alleged federal ownership when it alleged that the Ashley National
Forest was part of the National Forest System; and (2) that the six year statute
of limitations applied.
      Then presiding Judge Boyle denied Casita’s motion to dismiss. The court
found that the six-year limitations period of § 2415(b) applies to the extent that
the United States is alleging that the Mustang Fire caused physical damage to
the lands of the United States. Given the early stage of the proceedings, the
court declined to accept Casita’s argument that fire suppression costs are not
“damages resulting from fire” which are subject to the six year limitations period
in § 2415(b). Rather, the court left open a decision on whether fire suppression
costs were covered. It also found that the United States had sufficiently pleaded
federal ownership of the forest when it alleged that the Ashley National Forest
is part of the National Forest System; based on this allegation the court
concluded that federal ownership of the forest may be rationally inferred. It
stated that Casita could pursue discovery to test that inference. The claims
against Davis were voluntarily dismissed.
      The United States later filed an amended complaint which contained an
allegation that the Ashley National Forest and nearby land were owned by the
United States. The amended complaint added Dexter Axle Company (“Dexter”),
the manufacturer of the axle on the trailer, as a defendant.
      The plaintiff, Casita and Dexter all filed motions for summary judgment.
Among other bases for dismissal, Casita’s motion argued that 28 U.S.C. §
2415(b)’s three year limitation period bars the government’s action against it or,
at a minimum, the United States’ claims for fire suppression costs are time
barred because the six year limitations period applies only to rehabilitation costs
for damages to federal lands resulting from the fire. Dexter Axle filed a motion
for summary judgment adopting Casita’s argument on the limitations issues.
The United States filed a motion for summary judgment arguing that 28 U.S.C.

                                        3
   Case: 09-10104    Document: 00511053574       Page: 4   Date Filed: 03/16/2010

                                   No. 09-10104

§ 2415(b) provided a six year statute of limitations for all damages resulting
from fire to federal land.
      Although no party directly raised the issue, the district court, now
presided over by Judge Fish, granted Casita’s motion for summary judgment and
dismissed the case on the basis that the six year limitation period did not apply
because the United States had not established that the fire damaged lands were
“lands of the United States” as is required by 28 U.S.C. § 2415(b).
      The United States filed a motion for reconsideration under Rule 59(e) and
objected to the court’s failure to give notice of its intent to dismiss sua sponte on
a ground not argued by the movers.           With that motion, the United States
provided evidence of its ownership of the lands in question. The district court
denied the motion without explanation. The United States appeals.
      The complaint as amended alleges that the fire occurred on federal land.
We do not read Casita’s motion for summary judgment as challenging federal
ownership of the land in the Ashley National Forest. However, even if the
district court was entitled to conclude that the motion raised this issue, which
is doubtful, the court clearly abused its discretion in denying the government’s
Rule 59(e) motion. The Rule 59(e) motion attached evidence of the government’s
ownership of the land, including business records, maps and public documents
evincing federal ownership of the Ashley National Forest and BLM lands
involved in the Mustang Fire, which evidence the defendants do not challenge.
Given the reasonableness of the government’s position that it was unaware of
any claims by the defendants in the motions for summary judgment that the fire
did not occur on federally owned land, once the government provided clear
evidence of its ownership with the Rule 59 motion, the district court abused its
discretion in refusing to grant that motion.




                                         4
   Case: 09-10104   Document: 00511053574     Page: 5   Date Filed: 03/16/2010

                                 No. 09-10104

      We therefore vacate the district court’s order dismissing this action and
remand for further proceedings. We decline to consider issues raised by the
parties on appeal that have not yet been ruled on by the district court.
VACATED and REMANDED.




                                       5
