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Will v. United States

filed: July 26, 1995.

GARRY WILL, D/B/A WILL LOGGING AND CONSTRUCTION, PLAINTIFF-APPELLANT
v.
UNITED STATES OF AMERICA, DEFENDANT-APPELLEE



Appeal from the United States District Court for the Eastern District of Washington. D.C. No. CV-92-00243-JCI. Cynthia Imbrogno, Magistrate Judge, Presiding.

Before: Eugene A. Wright and Melvin Brunetti, Circuit Judges, and Irma E. Gonzalez,*fn* District Judge. Per Curiam.

Per Curiam:

This case involves a claim by a logging contractor against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., for property damage sustained by his road grader while it was parked in a national forest.

FACTS

During the summer of 1989, a timber sale and a ponderosa pine tree study required logging in the same area of the Colville National Forest in Washington state. The Forest Service had sold timber to a sawmill. The sawmill had contracted with Garry Will to cut and remove that timber. The Forest Service had selected and marked ponderosa pine trees to be logged. It contracted with a lumber company which subcontracted with Larry Dragnich to harvest those trees.

Before the Fourth of July weekend, Will parked a road grader and other heavy equipment off a dead-end road in the forest. Removing the equipment from the forest in the evenings and on weekends was not economically feasible. Parking the equipment in a secluded area protected it from vandalism.

During the weekend, the Forest Service's agent, Todd Gordon, met with Dragnich and walked around the study area. They found Will's grader parked next to a marked selected tree. To cut that tree, they needed to move Will's grader. Dragnich told Gordon that he had a universal key that would allow him to start the grader. He moved it to a bluff, exposing it to a more heavily traveled road and did not return it to the secluded area. Although Dragnich and other loggers knew that Will owned the grader, they did not attempt to tell him that it had been moved.

After the weekend, when Will's employee returned to the forest, he found that the grader had been moved and burned. Other equipment was not damaged.

PROCEEDINGS

Will sued the United States.*fn1 He alleged that the Government was liable for Dragnich's negligence and its own negligence. The court dismissed for lack of subject matter jurisdiction his claim against the Government for Dragnich's negligence because Dragnich was an independent contractor. The court also granted summary judgment on his claim against the Government for its negligence because, as a landowner, the Forest Service did not owe a duty to Will.

Will appeals. We have jurisdiction under 28 U.S.C. § 636(c)(3). We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

ANALYSIS

I. Subject matter jurisdiction.

We review de novo the court's Conclusion that it lacked subject matter jurisdiction. Carpenter v. DOT, 13 F.3d 313, 314 (9th Cir. 1994). We review factual findings on jurisdictional issues for clear error. Nike, Inc. v. Comercial Iberica De ...


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