An appeals court ruled Tuesday that the U. S. Forest Service can be sued by three property owners who were not warned that firefighters were going to ignite a backfire near their land.
The Bullock Fire burned 30,563 acres in the Santa Catalina Mountains near Tucson in May and June of 2003. Much of the fire was on the Coronado National Forest. During the suppression efforts a backfire did not go well, and some private property burned. The land owners are claiming that if they had been notified about the backfire they would have been better off somehow. They also claimed that they told the Forest Service about their property, but USFS employees later said the properties were not defended because the firefighters had not been informed that the properties existed. However, they were marked on a map.
The property owners attorney introduced as evidence a quote from the Forest Service Manual:
A line officer is responsible for ensuring “that the public and cooperators are informed of the selected alternatives [in deciding on wildfire suppression efforts]”.
The appeals court decision reversed an earlier district court ruling that gave the Forest Service immunity under the discretionary function exception to the Federal Tort Claims Act.
Carlos Bea, one of the three judges on the appeals panel, wrote the following in the decision:
We reverse the district court because, although no statute or agency policy dictates the precise manner in which the Forest Service must act when it lights a backfire, there is no evidence in the record that the Forest Service’s failure to notify the property owners of the backfire it lighted was susceptible to a policy analysis grounded in social, economic, or political concerns.
If the appellants had been notified of the proposed backfire, they might have been able to take measures to protect their properties, or at least ensured the Forest Service took measures to do so. For purposes of this appeal from a motion to dismiss, we find appellants’ pleadings adequately state such a possibility.
It is interesting that the Forest Service is being sued, not for negligence in burning the private property, but for not telling the land owners that they were going to use the tactic of a backfire in their suppression efforts. What if the chosen tactic had been direct line construction and the fire spotted across the line? Would there still have been a lawsuit?
The property owners must have some pretty sharp lawyers that dug very deeply to find this loop hole. And the three judges on the appeals panel obviously have no clue what goes on during the suppression of a wildfire.
This could open a large can of worms. What else are we going to have to notify land owners about while suppressing a raging wildfire? How many people and how much time will have to be devoted to holding the hands of property owners while at the same time we are frantically trying to save public and private land from burning?
Are we going to have to have a “Technical Specialist, Attorney” listed on our Incident Action Plans now?
I hope the federal government appeals this ridiculous decision by the 9th Circuit Court.