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State v. Black Hills Power, Inc.

Supreme Court of Wyoming

August 3, 2015

THE STATE OF WYOMING, Appellant (Intervenor-Plaintiff),
v.
BLACK HILLS POWER, INC., a South Dakota corporation, Appellee (Defendant)

W.R.A.P 11 Certification from the United States District Court, District of Wyoming. The Honorable Scott W. Skavdahl, Judge.

Representing Appellant: Peter K. Michael, Wyoming Attorney General; Martin L. Hardsocg, Deputy Attorney General; [*] Ryan T. Schelhaas, Senior Assistant Attorney General; Jared S. Crecelius, Senior Assistant Attorney General; and Megan L. Nicholas, Senior Assistant Attorney General. Argument by Ms. Nicholas.

Representing Appellee: Stuart R. Day and Scott P. Klosterman of Williams, Porter, Day & Neville, P.C., Casper, Wyoming; Thomas G. Fritz, Steven J. Oberg, and Catherine M. Sabers of Lynn, Jackson, Shultz & Lebrun, Rapid City, South Dakota. Argument by Ms. Sabers.

Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.

OPINION

Page 84

DAVIS, Justice.

[¶1] The United States District Court for the District of Wyoming certified three questions concerning the State of Wyoming's ability to recover expenses incurred in suppressing a wildfire near Newcastle, Wyoming from the party whose alleged negligence created the need for those services.

CERTIFIED QUESTIONS

[¶2] 1. Can the State of Wyoming recover its fire suppression and/or emergency services costs from a party whose negligence created the need for the emergency services?[1]

2. If the State of Wyoming cannot generally recover its fire suppression and/or emergency services costs from a party whose negligence created the need for the services, can the State of Wyoming nonetheless recover the costs of its services where portions of the lands protected by the fire suppression effort were State lands?

3. If the State of Wyoming can recover the costs of its services where portions of the lands protected by the fire suppression effort were State lands, is the State's recovery limited in any way, such as to a pro rata share of those costs based on the State's percentage of the total acres affected by the fire?

FACTS

[¶3] The federal district court's certification order contains a statement of facts relevant to the questions certified. Although our review and ultimate resolution of the questions do not require application of the facts,

Page 85

we set forth that portion of the order to provide context:

(b) Statement of Relevant Facts
1. On June 29, 2012, a wildfire was ignited near Newcastle, Weston County, Wyoming. The fire, referred to as the " Oil Creek Fire," originated in an area with a concentrated number of nearby State parcels and grew to a point that it could not be contained with the resources of the local Fire District in Weston County.
2. For qualified " emergency fires," as defined by Wyo. Stat. Ann. § 36-1-401(a)(ii), the costs of suppressing the fires are covered by the State of Wyoming through its Emergency Fire Suppression Account, created by § 36-1-402 and administered by the State Forester under § 36-1-403. As a participating county pursuant to the provisions of § 36-1-404, Weston County requested that the State pay for the costs of suppressing the Oil Creek Fire from the State's Emergency Fire Suppression Account. The State Forester approved the request.
3. The Oil Creek Fire allegedly consumed more than 61,000 acres, damaging approximately 9,857 acres of lands owned and ...

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