Alaska Supreme Court rules on lawsuit over burnout

Rex Creek Fire
The Rex Creek Fire on August 4, 2009, part of the Railbelt Complex in Alaska. Photo by ADF.

In 2009 firefighters in Alaska conducted a burnout operation on the Railbelt Complex of fires 45 mile southwest of Fairbanks. Part of the fire was on private land and four of the landowners filed a lawsuit asking for $100,000 each charging that the burnout was an illegal “taking” of their property. They also charged “negligence and intentional misconduct”, saying the state failed to adequately mop up after rains knocked down the fires, which later re-ignited.

The Alaska Supreme Court, reviewing a previous decision by a Superior Court, ruled that the landowners may be eligible for compensation.

Below is an excerpt from an article in the Newsminer:

A Superior Court judge dismissed the eminent domain claim in December 2010, finding the state’s actions “did not constitute a taking because they were a valid exercise of its police powers,” and dismissed the negligence and intentional misconduct claims on the grounds of government immunity, according to court documents.

The landowners appealed the decision.

The Supreme Court’s ruling affirmed the Superior Court’s dismissal of the negligence and intentional misconduct claims but reversed the dismissal of the eminent domain claim, “remanding it to the Superior Court for further consideration of whether the specific exercise of the state’s police powers at issue here was justified by the doctrine of necessity,” according to the opinion documents.

“The doctrine applies only if the state demonstrates the existence of ‘imminent danger and an actual emergency giving rise to actual necessity,’ an inquiry that is fact-specific,” the Supreme Court’s 28-page ruling states.

The landowners’ attorney, William Satterberg, was pleased with the ruling and expects the case to now be decided by a jury. He said the state did not need to set the burnout fires on his clients’ properties and that the fire was “basically a fire of convenience.”

“It was easier to light it there than it was to do it a mile away,” he said. “We do know they had lots of time, they could have gone down a mile away from their property. They thought about it for 11 days before they did it.”

Another excerpt from a previous article in the Newsminer:

“The point is, what’s a piece of burned-out property worth versus a piece of beautiful lakeside property?” said Bill Satterberg, who is representing the landowners. “You can’t just go around destroying people’s property and not pay for it.”

The Railbelt Complex of fires eventually burned over 600,000 acres.

Evergreen’s 747 “Supertanker” made its first drop on a live fire in North America on the fire. It was done at no charge to the fire, with the company wanting to demonstrate the capability of the 20,000-gallon air tanker.

Evergreen's 747 "Supertanker"
Evergreen’s 747 “Supertanker” drops on the Railbelt Complex of fires in Alaska, July 31, 2009.

Below is a video of a large burnout operation on the Railbelt Complex, July 16, 2009, narrated by the Incident Commander. .

We first wrote about the lawsuit in 2009.

UPDATE, December 1, 2014: As Emmett pointed out in a comment this situation has some similarities to a lawsuit filed by a Montana rancher over the 2000 Ryan Gulch Fire. The heart of that case was the contention that firefighters who usually fought fire in the flat, wet southeast United States used poor judgement in selecting and implementing an indirect strategy of backfiring or burning out, rather than constructing direct fireline on the edge of the fire. In the process, they argued, more land burned than was necessary, including 900 acres of a privately owned ranch.

Thanks and a tip of the hat go out to Keith.

Author: Bill Gabbert

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

2 thoughts on “Alaska Supreme Court rules on lawsuit over burnout”

Comments are closed.