IN THE SUPREME COURT, STATE OF WYOMING

2015 WY 99

APRIL TERM, A.D. 2015

August 3, 2015

THE STATE OF WYOMING,

Appellant

(Intervenor-Plaintiff),

v.

BLACK HILLS POWER, INC., a South 

Dakota corporation,

Appellee

(Defendant).

S-14-0268

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.

* Order allowing withdrawal of counsel Martin L. Hardsocg filed March 13, 2015.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. 

Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, 

Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be 

made before final publication in the permanent volume.
1

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, 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. § 36-1-401(a)(ii), the costs of suppressing the fires 

are covered by the State of Wyoming through its Emergency 

 

1 These questions do not concern the State’s right to recover damages to its land, timber, or structures.
2

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 managed by the State of Wyoming.

4. The State allegedly incurred approximately 

$5,213,000 in suppression costs for the Oil Creek Fire, which 

it has paid or will pay from the State’s Emergency Fire 

Suppression Account.

(c) Nature of Controversy 

On April 12, 2013, a group of private landowners 

(“Landowners”) filed this action [in Federal Court] against 

Defendant, Black Hills Power (“BHP”), alleging BHP was 

negligent in its inspection, operation, and maintenance of a 

69kV transmission line, which ignited the Oil Creek Fire and 

resulted in damages to the Landowners. . . . BHP disputes 

liability and denies the nature and extent of the Landowners’ 

alleged damages. On June 3, 2014, the State of Wyoming 

filed a motion to intervene, which was granted on July 1, 

2014. The State’s Complaint was subsequently filed.

In its Complaint, the State also alleges BHP was 

negligent in its inspection, maintenance and operation of the 

69kV transmission line. The State seeks recovery for 

damages to State-owned property as well as for suppression 

costs associated with the Oil Creek Fire, including both costs 

incurred in the protection of its own property and through 

payment obligations to Weston County from the State’s 

Emergency Fire Suppression Account. The State’s 

Complaint does not delineate between the amount of fire 

suppression costs incurred in the protection of State land 

versus those fire suppression costs incurred in protection of 

lands owned by other parties. 

Defendant moved to dismiss the State’s claim for 

recovery of fire suppression costs arguing, because recovery 

of such costs by a governmental entity is not recognized at 

common law, the State cannot make a viable claim for 
3

recovery of fire suppression costs in the absence of a specific 

state statute authorizing recovery. In response, the State 

argues, even if the “public services doctrine” was recognized 

in Wyoming, an exception to the doctrine applies where the 

government incurs expenses to protect its own property. 

STANDARD OF REVIEW

[¶4] Pursuant to W.R.A.P. 11.01, we may answer a question of law that may be 

determinative of a cause pending in the certifying court for which there appears to be no 

controlling precedent from this Court. Preston v. Marathon Oil Co., 2012 WY 66, ¶ 4, 

277 P.3d 81, 83 (Wyo. 2012). Certified questions are queries of law that are reviewed de 

novo. Id.; State v. Mares, 2014 WY 126, ¶ 10, 335 P.3d 487, 493 (Wyo. 2014).

DISCUSSION

General Rule

[¶5] The general common law rule adopted by other jurisdictions, which has been 

called the free public services doctrine, provides that absent specific statutory 

authorization, a governmental entity cannot recover the costs of providing public services 

from a tortfeasor whose conduct caused the need for such services.2 See Dist. of 

Columbia v. Air Florida, Inc., 750 F.2d 1077, 1080 (D.C. Cir. 1984); City of Flagstaff v. 

Atchison, Topeka & Santa Fe Ry. Co., 719 F.2d 322, 323-24 (9th Cir. 1983); Walker 

Cnty. v. Tri-State Crematory, 643 S.E.2d 324, 327 (Ga. Ct. App. 2007). The raison 

d'être for the rule is that a governmental entity providing certain essential services for the 

public can more fairly absorb and pass the costs for those services on to its citizenry as a 

whole through taxation. Dist. of Columbia, 750 F.2d at 1080; City of Flagstaff, 719 F.2d 

at 323-24; City of Bridgeton v. B. P. Oil, Inc., 369 A.2d 49, 54 (N.J. Super. 1976). 

[¶6] A seminal case is City of Flagstaff, 719 F.2d at 323, in which the Ninth Circuit 

Court of Appeals held that “the cost of public services for protection from fire or safety 

hazards is to be borne by the public as a whole, not assessed against the tortfeasor whose 

negligence creates the need for the service.” See also Dep’t of Natural Res. v. Wisconsin 

Power & Light Co., 321 N.W.2d 286, 288 (Wis. 1982) (“Any liability for the cost of 

extinguishing the instant fire must be imposed by statute, for there is no common law 

liability permitting a governmental entity to charge an electric utility for fire suppression 

expenses.”). It went on to explain that the

 

2 The rule is also referred to as the municipal cost recovery rule when applied to cities. See City of 

Chicago v. Beretta U.S.A. Corp., 821 N.E.2d 1099, 1143-44 (Ill. 2004); City of Philadelphia v. Beretta 

U.S.A., Corp., 126 F. Supp. 2d 882, 894 (E.D. Pa. 2000). 
4

governmental entities themselves currently bear the cost in 

question, and they have taken no action to shift it elsewhere. 

If the government has chosen to bear the cost for reasons of 

economic efficiency, or even as a subsidy to the citizens and 

their business, the decision implicates fiscal policy; the 

legislature and its public deliberative processes, rather than 

the court, is the appropriate forum to address such fiscal 

concerns.

City of Flagstaff, 719 F.2d at 324; see also City of Chicago, 821 N.E.2d at 1144-45. 

[¶7] A year later, a similar result was reached in District of Columbia v. Air Florida,

750 F.2d at 1079. In that case, the District of Columbia brought a negligence action 

against an airline seeking to recoup costs associated with rescue and recovery efforts 

incurred due to a plane crash. Id. The District of Columbia Circuit Court of Appeals 

affirmed the district court’s dismissal of the action based upon the free public services 

doctrine. In so doing, the court explained:

Where emergency services are provided by the government 

and the costs are spread by taxes, the tortfeasor does not 

anticipate a demand for reimbursement. Although settled 

expectations must sometimes be disregarded when new tort 

doctrines are needed to remedy an inequitable allocation of 

risks and costs, where a generally fair system for spreading 

the costs of accidents is already in effect—as it is here 

through assessing taxpayers the expense of emergency 

services—we do not find the argument for judicial adjustment 

of liabilities to be compelling.

We are especially reluctant to reallocate risks where a 

governmental entity is the injured party. It is critically 

important to recognize that the government’s decision to 

provide tax-supported services is a legislative policy 

determination. It is not the place of the courts to modify such 

decisions. Furthermore, it is within the power of the 

government to protect itself from extraordinary emergency 

expenses by passing statutes or regulations that permit 

recovery from negligent parties.

Id. at 1080; see also Cnty. of Erie, New York v. Colgan Air, Inc., 711 F.3d 147, 150-51 

(2d Cir. 2013); Walker Cnty., 643 S.E.2d at 327. 
5

[¶8] We are convinced that the reasons for the common law’s free public services 

doctrine as articulated in City of Flagstaff, District of Columbia and similar cases are 

sound.3 Accordingly, like many other jurisdictions, we adopt the free public services 

doctrine. Absent a legislative grant of authority, the State of Wyoming may not generally 

recover its fire suppression and/or emergency service costs from a party whose 

negligence created the need for the services.

[¶9] Turning then to whether there is any statutory authority that would allow the State 

to recover the fire suppression and/or emergency service costs incurred in suppressing the 

Oil Creek Fire from BHP, or prohibit it from doing so, we must examine the statutes 

which create an emergency fire suppression account, which in turn allows the State to 

come to the aid of counties whose resources are insufficient to suppress a fire. Guided by 

our rules of statutory interpretation, see Aland v. Mead, 2014 WY 83, ¶ 11, 327 P.3d 752, 

758-59 (Wyo. 2014), we find that Wyo. Stat. Ann. §§ 36-1-401 through 404 (LexisNexis 

2015) do not provide any hint that the legislature intended to alter the general common 

law rule and shift costs to the party whose negligence created the need for the fire 

suppression and/or emergency services. 

[¶10] Wyo. Stat. Ann. § 36-1-401 defines essential terms used in the statutes 

establishing the emergency fire suppression program. The next section, § 36-1-402, 

creates the emergency fire suppression account. It sets forth the funding and investing 

structure, which relies upon legislative appropriations, assessments from participating 

counties, and investment income. Wyo. Stat. Ann. § 36-1-403 establishes the state 

forester’s powers and duties in relation to the emergency fire suppression account. And 

lastly, § 36-1-404 outlines how a county desiring to participate in the emergency fire 

suppression account goes about doing so. Plainly absent from these statutes is language 

evidencing legislative intent that the State may recover fire suppression or emergency 

service costs from a negligent party, or that it cannot do so if the State incurred the 

expenses to protect its own property. 

[¶11] By way of comparison, the legislature has statutorily authorized recovery of fire 

suppression costs in cases involving railroads. In Title 37 (Public Utilities), Chapter 9 

(Railroads), the clear language evidences the legislature’s intent that fire suppression 

costs for fires started by railroads is to be borne by the operating railroad:

 

3

See, e.g., Cnty. of Erie, New York, 711 F.3d at 150-51; Walker Cnty., 643 S.E.2d at 327; City of 

Chicago, 821 N.E.2d at 1144; United States v. Rocky Mtn. Power, No. 2:11-CV-00227, 2011 WL 

3423383, at *3 (D. Utah Aug. 4, 2011); Matter of Oil Spill by Amoco Cadiz Off Coast of France on Mar. 

16, 1978, 954 F.2d 1279, 1310-11 (7th Cir. 1992); Koch v. Consolidated Edison Co. of N.Y., 468 N.E.2d 

1, 8 (N.Y. 1984); Dep’t of Natural Res., 321 N.W.2d at 288; Town of Freetown v. New Bedford 

Wholesale Tire, Inc., 423 N.E.2d 997, 997-98 (Mass. 1981); City of Bridgeton, 369 A.2d at 54; Allenton 

Volunteer Fire Dep’t v. Soo Line R. Co., 372 F. Supp. 422, 423 (E.D. Wis. 1974).
6

(a) Every railroad corporation operating its line of road, or 

any part of it, within this state, shall be liable for all damages 

by fire resulting from or caused by operating any such line of 

road together with suppression costs, established by the 

department of transportation, and any damages and costs in 

any court of competent jurisdiction.

(b) Any damage and suppression cost may be recovered by 

the party damaged if an action is brought by the party injured 

within one (1) year next after said damages shall have been 

inflicted or caused. An injured party who recovers more than 

has been last offered in writing by the railroad under this 

section may be awarded reasonable attorney fees and other 

costs incurred in seeking recovery under this section if it is 

determined that the railroad acted unreasonably and without 

cause.

Wyo. Stat. Ann. § 37-9-303 (LexisNexis 2015) (emphasis added). 

[¶12] The fact that the Wyoming legislature has enacted statutes allowing recovery of

fire suppression costs for fires caused by railroads, by expressio unius est exclusio 

alterius, indicates that it normally expects the governmental entities to cover their 

expenses through taxes and fees. Because the statutes relating to the emergency fire 

suppression program do not include any provision to institute suit or recover fire 

suppression costs from an allegedly negligent party, the State’s tort claim to generally 

recover all costs associated with suppressing the Oil Creek Fire is barred by the free 

public services doctrine.

[¶13] The answer to the first certified question is, therefore, no. 

Exception to the General Rule 

[¶14] As with most rules, there is an exception to the free public services doctrine 

“where the government incurs expenses to protect its own property.” City of Flagstaff, 

719 F.2d at 324 (emphasis added); see also Dist. of Columbia, 750 F.2d at 1080; United

States v. Denver & Rio Grande W. R.R. Co., 547 F.2d 1101, 1105 (10th Cir. 1977); 

United States v. Morehart, 449 F.2d 1283 (9th Cir. 1971); Chesapeake & O. Ry. Co. v. 

United States, 139 F.2d 632, 633 (4th Cir. 1944); United States v. Chesapeake & O. Ry. 

Co., 130 F.2d 308, 310 (4th Cir. 1942); Restatement (First & Second) of Torts § 919

(1979, updated 2015). As the authorities just cited indicate that, like private property 

owners, the government can recover expenses reasonably incurred to protect its own 

property. 
7

[¶15] Thus, even though 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, it may be able to recover the costs of its service where portions of 

the lands protected by the fire suppression effort were State lands. Whether it can 

recover here, and to what extent, is the subject of the third certified question.

[¶16] Accordingly, the answer to the second certified question is yes.

Amount of Recovery for Costs Incurred in Protecting State Lands

[¶17] The third question certified asks 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, whether the State’s recovery is limited in any way. The narrow answer is not as a 

matter of law. We point out that when real property has been damaged or destroyed by a 

wrongful act, the desired objective is to ascertain as accurately as possible the amount of 

money that will fairly and adequately compensate the owner for the loss. See Goforth v. 

Fifield, 2015 WY 82, ¶ 37, __ P.3d __, __ (Wyo. June 11, 2015); see also Denver & Rio

Grande W. R.R. Co., 547 F.2d at 1105 (“[T]he fundamental principle of damages is to 

restore the injured party, as nearly as possible, to the position he would have been in had 

it not been for the wrong of the other party.”). “This would include the cost of 

suppression of the fire.” Id. at 1105; see Chesapeake & O. Ry. Co., 130 F.2d at 310 

(“The principle of liability for foreseeable consequences, upon which this rule is based, 

certainly permits the recovery of damages in the form of expenditures incurred in 

attempting to save property.”); Restatement (First & Second) of Torts § 919.

[¶18] Beyond that, we find that the question raises issues of fact that will have to be 

resolved by the federal district court. See Cross v. Berg Lumber Co., 7 P.3d 922, 928 

(Wyo. 2000) (“Damages are findings of ultimate fact.”); Chesapeake & O. Ry. Co., 130 

F.2d at 310 (“The fire was rapidly approaching the property of the plaintiff and whether 

or not the plaintiff was justified in the steps it took to extinguish the fire was a question to 

be passed upon by a jury.”). 

[¶19] The question posed and the briefs and arguments of the parties suggest a number 

of unknowns. We have no way of knowing whether the State would have been obligated 

to expend the funds it did fighting the Oil Creek Fire by the terms of its fire suppression 

agreement with Weston County, whether or not State property had been threatened. 

Those contracts and evidence as to how the fire suppression fund is administered are not 

before us on this certified question. We would expect BHP to argue that if the State had 

the obligation to fight the fire regardless of whether State land was threatened, it did not 

actually incur the expenses to protect its property, but rather to fulfill its obligations to 

Weston County. 
8

[¶20] Whether or not that is an issue, we cannot hope to ascertain on a certified question 

whether the State had to expend all of the funds it did to protect State property because it 

had to fight the fire on adjacent private property to protect its own lands. We conjecture 

that the question of whether the costs of fighting the fire on State lands can be 

apportioned from the overall costs incurred will be the subject of testimony by dueling 

experts in fire suppression, and if so, the trier of fact will have to evaluate that testimony. 

[¶21] While the third certified question predominantly raises questions of fact, we are 

able to find that the State’s recovery is not limited in any way as a matter of law. 

CONCLUSION

[¶22] The answer to the first certified question is no. The State cannot generally recover 

its fire suppression and/or emergency service costs from a party whose negligence 

created the need for the emergency services because of the free public services doctrine. 

[¶23] The answer to the second certified question is yes. While the free public services 

doctrine does not permit the State to generally recover its fire suppression and/or 

emergency services costs from a party whose negligence created the need for the 

services, there is an exception to the general rule which will allow the State to recover the 

costs of its service where portions of the lands protected by the fire suppression effort 

were State lands.

[¶24] The limited answer to the legal aspect of the third question certified is not as a 

matter of law. The bulk of the question is factually loaded and cannot be answered 

because it raises questions of fact that will need to be decided by the trier of fact.