Forest Service may be liable for backfire

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.

Bullock Fire
Bullock Fire, May 2002. USFS photo

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.

Author: Bill Gabbert

After working full time in wildland fire for 33 years, Bill Gabbert now writes about it from the Black Hills.

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11 thoughts on “Forest Service may be liable for backfire”

  1. Question the Forest Service with boldness!!!!

    I for one, am glad that the Land Mgt. Agencies are being questions regarding fire policy!

  2. That’s the problem with most americans today. They have to blame someone else for their actions, or in this case lack of. Shouldn’t these property owners be responsible for making their own homes defendable before there is even a fire? If they had taken care of it in the first place, backfire or not, that would have been fine. Now they want to blame someone else for their lack of action. Too bad!

  3. It’s a shame firefighters put their lives on the line to defend peoples property and a slight mistake such as this has the consequences of a lawsuit, bogus in my opinion. People have grown into a whole new monster throwing lawsuits against the very people that are tryng to protect property and lives. Just shows how backwards some people in our great country can be. Get a life people!

  4. Sometimes no matter how hard we try to do the right thing it’s not right in someone elses view.

    Being 8 years old the defense is going to have a hard time finding the people who made the decisions.

    Carry personal liability insurance.

  5. Another vote for holding the feds accountable. Many times tactics need to change based on the land involved and this is one of those cases. The federal agencies are full of arrogant people that think all land ‘needs to burn’ and maybe this will make them think twice before backing up and lightning off a bunch of ground. It’s almost a knee jerk reaction now.

  6. OK,

    Imagine, you have a bunch of wildland firefighters sitting in a room while 100’s of thousands (if not millions) of acres burned becasue they were to worried about lighting a backfire………because somebody, somewhere might sue them for something………

  7. I agree that everyone seems to be an expert after the fire is contained and over. What happened to protecting what you own. Why does the goverment have the responsibility to protect someone’s private property? I think people need to look at what they should have done first rather than try to blame the Forest Service for there lack of land management!

  8. It seems to me that the land owner has a responsibility to take steps to protect their property long before a wildfire occurs. This is a significant change from the Backburn case on the Valley Fire on the Bitterroot in 2000. The National fire Policy of 1995 spoke of state, county and local government redeeming their responsibility woodland fire protection. Also as usual no one seems to ever use the right terms might it have been “burn out” Retirement looks better all the time…

  9. Backburn(?) Wasn’t that a movie? Two guys that liked each other, Back Burn Mountain. There is back firing and burning out or burn out but the only way to handle a back burn is Ben Gay. Why didn’t they call the movie Ben Gay?

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