Court rules in favor of the Forest Service over escaped prescribed fire

map of davis fire August 27 2010

The map of the Davis fire, an escaped prescribed fire in Montana, shows heat detected by satellites during the early morning on Aug. 27, 2010. Click to see a larger version of the map.

The U.S. Forest Service dodged a bullet recently when the agency received a very favorable ruling from a Federal court judge over a 2010 escaped prescribed fire in Montana. Senior U.S. District Judge Charles Lovell decided on March 22, 2015 that the U.S. is immune from the suit writing in his decision:

The Court concludes that Plaintiff has failed to demonstrate that the Forest Service was negligent either in conducting the Davis 5 Unit prescribed burn or in fighting the escaped fire once it occurred or that the Forest Service violated any mandatory policy or prescription. In addition, and more significantly, strict liability does not apply and the discretionary function exception applies to bar Plaintiff’s tort claims.

The Plaintiff in the case was Kent Taylor, the landowner of a 146-acre parcel of which 142 acres burned, including some lodgepole pine.

Firefighters ignited the Davis 5 prescribed fire at 1 p.m on Wednesday, August 26, 2010 on the Helena National Forest 11 miles southeast of Lincoln and 28 miles northwest of Helena in Montana. By 2:00 p.m. strong winds became a problem and the fire moved into the tree canopy. All ignition ceased, but soon there was a spot fire which burned 20 acres in heavy mixed conifers. When all personnel left the fire at 10:00 p.m. to avoid the hazard of falling trees, the spot fire had been partially lined.

The next day, Thursday, additional personnel were on scene. They were completing the fireline and gridding for other spot fires when an undetected one took off at 1:00 p.m. which quickly transitioned to a crown fire. The prescribed fire was declared an escape at 1:15 p.m. and a Type 2 Incident Management Team was requested at 2:27 p.m. By nightfall the fire was estimated at over 1,600 acres on federal land and 450 acres on private lands involving multiple landowners. Approximately 22 structures were evacuated on Thursday afternoon and evening.

Both the court decision and the official USFS report on the escaped prescribed fire failed to consider the significance of the differences between a spot weather forecast issued the day before the prescribed fire and the spot weather forecast that was issued at 10:43 a.m. Wednesday, August 25 on the day of the burn, about 2 hours before the firefighters ignited the final test burn. In fact, the Judge’s decision does not mention the 10:43 a.m. forecast that predicted stronger winds than in the forecast that was issued the previous day which was for “winds upslope 3 to 6 mph, ridge top winds southwest 5 to 10 mph with gusts to 15 mph”. Here is what Wednesday morning’s forecast predicted for the day of ignition (the all-caps are from the weather forecast, a bad habit the NWS needs to break):

WIND (20 FT)……..SOUTHWEST WINDS 10 TO 15 MPH WITH AFTERNOON GUSTS 20 TO 25 MPH.
RIDGE TOP WIND……WEST AT 15 TO 20 MPH.

The report says:

The prescribed fire personnel stated they did not note any differences between the two forecasts.

That forecast also stated that on the following day, Thursday, the winds in the afternoon would be 30 to 35 mph.  The maximum wind speed allowed in the prescription for the project was 15 mph.

Again, the judge’s written opinion does not mention the last spot weather forecast, which was issued the morning of the ignition.

Even though ignition on the prescribed fire did not begin until 1 p.m. the USFS Burn Boss planned to have the 100-acre project essentially mopped up by the end of the day, anticipating for the following day the winds predicted in the now obsolete forecast: “winds upslope 3 to 6 mph, ridge top winds southwest 5 to 10 mph with gusts to 15 mph”.

In light of this very favorable court ruling, Jamie Kralman, a USFS Regional Fuels Specialist for the California region, distributed the good news, saying in part:

…I could really see the mindfulness of the agency personnel involved demonstrating High Reliability Organization (HRO) principles in their planning and implementation.  All key personnel met or exceeded minimum qualifications, planning and implementation was by appropriate certified personnel, appropriate line officer involvement and approvals occurred, and The Interagency Prescribed Fire Planning and Implementation Procedures Guide was followed in development of the Burn Plan.  The Court opinion also demonstrates support for use of The Interagency Prescribed Fire Planning and Implementation Procedures Guide.

This legal outcome is clearly consistent with what we have been teaching  in Prescribed Fire courses, Burn Boss Refresher training, and in other venues in this region regarding lack of personal liability in our prescribed fire operations and that  “…strict liability does not apply and the discretionary function exception applies…” because the action involved ‘an element of choice’ and the action was taken ‘based on consideration of public policy’.

 

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Another Montana wildfire claims two homes near Columbus

Pine Crest Fire, InciWeb

Pine Crest Fire, InciWeb

The Pine Crest wildfire near Columbus, Montana burned two homes this weekend and forced dozens of residents to evacuate, the Billings-Gazette reported on Sunday.

The fire started around 1 p.m. on Saturday five miles west of Columbus, which is west of Billings. As of Monday morning it had burned 3,000 acres and was 10 percent contained on Sunday night. Three helicopters fought the fire along with 98 firefighters, according to the Billings-Gazette. InciWeb reports show that one firefighter was injured.

A subdivision was expected to remain on evacuation until Monday morning, when the Columbus Fire Department planned to host a public meeting. The fire’s cause is still under investigation, according to InciWeb.

Another Montana fire near Red Lodge briefly shut down a local ski area on Saturday. The West Fork fire was 20 percent contained at 400 acres as of Saturday night. In a post on its Facebook page, Red Lodge Fire Rescue said the fire ignited when a days-old controlled burn rekindled.

Snowpack in south-central Montana is below average, hovering around 89 percent of normal, according to the latest reports from the Natural Resources Conservation Service. In the National Significant Wildland Fire Potential Outlook released for March through June, Montana was not expected to have an above-average early fire season.

“The periods of warm chinook flow during this time melted snow accumulations over all but the highest elevations east of the Continental Divide in Montana, and dried fine fuels enough to allow sporadic grass and brush fire activity,” the report said. “This is not an unusual occurrence as these warm dry periods in winter occur most years to some degree.”

 

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UPDATE: Rekindled controlled burn caused Montana fire near ski area

Update 5:30 p.m. MDT: 

New maps have updated the West Fork fire perimeter to 400 acres, down from an estimated 700 as of Saturday night.

Seventy people are working on the fire, including crews from Red Lodge Rural 7 and the U.S. Forest Service. Crews determined that the fire threatened 30 structures, although none were damaged or destroyed. There were no evacuations on Sunday and the Red Lodge Mountain ski area was operational on Sunday.

The fire was estimated to be 20 percent contained as of early Sunday evening. In a post on its Facebook page, Red Lodge Fire Rescue said:

“(The) fire was believed to have been rekindled from a controlled burn that was started last (Wednesday), when there was still snow on the ground. Yesterday’s high wind and temperature brought it back.”

fire image

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Original post:

A wildfire a few miles from the southern Montana town of Red Lodge forced a brief evacuation of the local ski area, Red Lodge Mountain, on Saturday afternoon, the Billings-Gazette reported. 

A controlled burn on private land might have ignited the wildfire when it was fanned by winds and spread out of control on Saturday. Incident reports show that fire was human caused, with an investigation on-going. By Saturday night it had burned more than 700 acres.

Officially named the West Fork fire, the blaze has been working its way through timber, grass and sagebrush. The ski area was evacuated around 2:30 p.m. as a precautionary move and to allow fire crews better access, a spokesman for the U.S. Forest Service told The Associated Press. 

The ski area was closed for a few hours; officials with Red Lodge Mountain said that the area will be open on Sunday.

Conditions at the resort are warm and dry, and it has been more than three days since the area last saw snowfall, according to forecast histories. Snowpack in the Upper Yellowstone basin, where the ski area is, was below average, according to the most recent measurements taken by the Natural Resources Conservation Service.

The basin’s snowpack came in at 89 percent of normal as of measurements posted on March 29.

Screen Shot 2015-03-29 at 11.07.55 AM

 

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Montana firefighter charged with arson

Firestone Flats Fire

Firestone Flats Fire. Inciweb photo.

A firefighter in Montana is being charged with arson after admitting to starting multiple wildfires. One of the largest was the Firestone Flats Fire that burned 1,570 acres 25 miles north of Missoula, Montana in July and August of 2013.

Below is an excerpt from the Lake County Leader:

Phillip “Cody” Haynes, a wildland firefighter for the Confederated Salish and Kootenai Tribes, told investigators he had started seven forest fires in the past three years, according to Lake County Prosecutor Steve Eschenbacher.
Haynes, who was charged with felony arson, appeared before District Court Judge Deborah K. Christopher March 19 for arraignment where Haynes requested legal counsel. Haynes is to be arraigned March 26.

Haynes did not admit to the alleged crimes until a CSKT fire investigator, two other CSKT firemen and a Lake County sheriff’s detective convinced him to confess.
According to court documents, Haynes took responsibility for setting several fires last year: the South Finley fire on July 28, the Saddle Mountain Fire on Aug. 18, the Hammer Fire on Aug. 25, as well as the Arlee Pines fire on July 17, 2013, and the Firestone Fire in July 2013.

On August 1, 2013 the following resources were assigned to the fire: Bob Fry’s, Western Montana Incident Management Team, 384 firefighters and support personnel, 3 Hotshot Crews, 6 other Hand Crews,19 Engines, 2 Helicopters, 12 pieces of Heavy Equipment, 7 Water Tenders, and 2 Heavy Air Tankers were available.

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

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Firefighter’s film-making son invited to the White House

Noah Gue President Obama

Noah Gue talks with President Obama in the White House. Photo credit, White House.

The six-year-old son of a wildland firefighter was one of 15 filmmakers to be invited to show a video at a film festival at the White House. Noah Gue worked with his father, Michael Gue, a firefighter with the U.S. Forest Service in Bozeman, Montana, to make the film to help raise awareness of climate change and inspire conservation. Noah’s parents produced the film in which he is the on-screen narrator. He also got a credit for editing. The film was selected to be shown Friday at the second White House Student Film Festival.

Noah Gue President Obama

Noah Gue high-fives President Obama in the White House. Photo credit: Photo by Jacquelyn Martin.

Noah Gue Hilary Swank

Noah Gue talks with Hilary Swank in the White House. Photo by Jake Rosenberg.

The fact that Noah had a loose front tooth did not escape the notice of President Obama who mentioned it in his opening remarks at the event. Here are some excerpts from the official transcript:

Thank you so much, everybody! Have a seat. Well, hello, everybody, and welcome to the second annual White House Film Festival. (Applause.) It’s like the Sundance or Cannes of film festivals that are open to the public through a government website. (Laughter.) It may also be the only film festival where one of the entrants has his tooth loose. (Laughter.) And may pull it out right here at the ceremony. (Laughter.)

[and later]

…Today, we’re celebrating a 6-year-old in Montana. Is that you? (Applause.) He’s the guy without — he’s missing teeth. (Laughter.) But he’s also challenging us to see conservation through a child’s eyes…

Noah’s father, Michael, is a prolific photographer, as is his wife who is a wedding photographer. We have featured Michael’s fire pictures a couple of times on Wildfire Today, HERE and HERE. His Instagram account has over 7,000 followers…

Congratulations to Noah and Michael!

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