22 Apr 2008, 5:57pm
Federal forest policy Saving Forests
by admin

Ninth Circuit Rules Against Burned-Out Homeowners

In the Summer of 2000, the USFS set a backfire that backfired in Ravalli County, Montana, in the Bitteroot Valley.

The year 2000 was a particularly bad year for fires in the Bitterroot region; 307,000 acres burned, nearly 20 percent of the Bitterroot National Forest. An additional 50,000 private acres burned in Ravalli Co., including 70 homes, 170 other buildings, and 95 vehicles. From a USFS report:

The fires blackened the western skies above the town of Hamilton, burned deep into the back country above West Fork’s Painted Rocks Lake, and stretched from the height of Lost Trail Pass down the Sapphire ridges, past Darby to four miles east of Hamilton (USDA Forest Service, 2000). Private property losses were high ranging in the millions of dollars.

Some of those losses were the result of a backfire set in Spade Creek on the Spade Fire, one of the Sula Complex of fires. The backfire, not the main fire, burned down a number of homes. Homeowners who lost their homes were upset, formed a group they called “Bacfire 2000,” and in 2002 sued the USFS for damages.

Last fall, five years later, U.S. District Court Judge Donald Molloy rejected that lawsuit. Last week, the Ninth Circuit Court of Appeals affirmed Judge Molloy’s ruling.

From the Ravalli Republic [here]:

by PERRY BACKUS - Ravalli Republic

Land management agencies have broad discretion in determining the best techniques to fight wildfires and the courts can’t second guess those decisions, said U.S. District Court Judge Donald Molloy in a decision last fall.

Last week, a three-judge Ninth Circuit of Appeals panel affirmed the Molloy opinion that gave the U.S. Forest Service sovereign immunity in a lawsuit over a backfire that some southern Bitterroot Valley residents claimed destroyed their homes.

In 2002, 114 families filed a $54 million lawsuit against U.S. Forest Service under the federal Tort Claims Act alleging a backfire lit at the height of the catastrophic fires of 2000 caused a fire that destroyed a number of homes.

The backburn was set August 6 - the same day the southern end of the Bitterroot Valley erupted in flames.

On that afternoon, a large fire was burning in Gilbert Creek south of Dickson Creek as well as elsewhere in the valley. There were spot fires in Spade Creek at the same time. By midafternoon, the temperature was 92 degrees, the humidity was very low and the wind was coming up.

Firefighters set the backburn near the mouth of Spade Creek.

The families who filed the lawsuit claimed the backburn destroyed their properties. The government claimed the Spade Fire caused the damage.

Molloy said it didn’t matter which fire did what or whether the government employees’ actions were “wise, foolish or negligent.”

Instead, Molloy said the firefighter’s decision was protected under the discretionary function exception of the federal Tort Claims Act, which offers federal employees who exercise discretion within the scope of their employment immunity.

“Congress created the land management agencies and granted authority and broad discretion to fight wildland fires on public lands,” Molloy wrote. “How federal agencies fight wildland fires and balance the concomitant dangers to lives and property on public and adjacent lands constitute the exercise of discretionary social, political and economic policy.” …

“The Forest Service’s decision to set backfires was a policy judgment in that it ‘involved a balancing of considerations, including cost, public safety, firefighter safety, and resource damage,’ and “these considerations reflect the type of economic, social and political concerns that the discretionary function is designed to protect,” said the Ninth Circuit Court of Appeals decision.

Bitterroot National Forest Supervisor Dave Bull said the agency was “pleased” with the Ninth Circuit’s decision.

Firefighters need to be able to be able to make decisions based on the best information they have at the time without having to second guess themselves over potential liability concerns, Bull said.

If the decision had gone the other way, it could have created a precedent that would have made it difficult for firefighters to do their job, he said.

“If a firefighter has to start worrying about liability when they are having to make critical tactical decisions, they could end up standing there with their hands in the their pockets instead of fighting the fire,” he said.

The recent court decision left many families in the southern Bitterroot Valley disappointed.

Carter Giles of Darby lost everything in the firestorm that ensued up Dickson Creek.

“Our house imploded,” Giles said. “The fire burned that hot. They figured it was 2,400 to 2,500 degrees. Everything I owned - my home and barn - was taken away in a small dump truck.”

Giles is bitter about the agency’s decision to light backfires that day.

“If it had been a natural fire, it would be one thing,” he said. “There were some serious errors made that took us all out.”

He’s upset with the court’s decision to throw out the case.

“Our attorneys did a great job for us,” Giles said. “This case just shows that the Forest Service can do whatever they want and God help you.”

The USFS is indemnified against any and all negligence in fighting fires. Burned-out homeowners have no legal recourse to be made whole or even recover a portion of their losses.

That is why the residents of counties and states with USFS land MUST take responsibility and demand oversight of USFS firefighting. And when the USFS throws their Fire Management Plans in the dumpster rather than face any public scrutiny (as USFS Chief Gail Kimbell did earlier this month), a very serious alarm must resonate throughout the West.

W.I.S.E. recently submitted a 170 page Comment protesting the incorporation of Let It Burn into the Fire Management Plan of the Rogue River-Siskiyou National Forest. The probable outcome is that the the RR-SNF will ignore those Comments and/or junk their FMP altogether.

Residents have no legal recourse against the USFS for such actions. Another Biscuit Fire is coming and there is apparently nothing anyone can do about it. That situation is intolerable and will lead to massive recompensed private losses, watershed and forest destruction, and probable deaths among the citizenry (either directly from megafire or indirectly from smoke effects).

We have been sounding that alarm at SOS Forests for two and a half years. It is very frustrating to me that the general public is still clueless about the dangerous and destructive actions being perpetrated against us by an out-of-control, beyond-legal-reach federal agency.

22 Apr 2008, 10:34pm
by Joe B.

I haven’t read the decision, but in simpleton legal terms, I cannot fathom how an indemnity can trump the fifth amendment. I would argue it from that standpoint if I were in front of the Supreme Court. That wonderful amendment guarantees no deprivation of life, liberty and property without due process or just compensation.

I would argue that these citizens were denied due process. No reasonable judge can find that due process was served during the public comment period for the indemnity. Because there wasn’t a public hearing held nor were the affected landowners comments considered when the decision to light the backfire occurred. It’s a simpleton legal argument, but hell it would have to be taken seriously by the Supreme Court, who happens to have at least five members (a majority) who would take it seriously.

The facts aren’t in dispute in this case, are they? It is a simple case of lighting a backfire that backfired, and private property was lost. The residents were denied due process and obviously were denied just compensation for the loss of their property. Essentially this was a taking.

I don’t see how a policy directive can trump the fifth amendment.

It is a damn shame, but if you are a private citizen and you are banking on the Ninth Circle of Hell for an appeal, you can kiss your appeal goodbye. I hope it goes to the next level.

22 Apr 2008, 10:58pm
by Mike

That’s a perceptive comment and I totally agree.

Similarly, when some functionary of the USFS declares a Let It Burn fire on the spur of the moment, every affected person in the watershed/airshed is denied due process.

Indeed, when the Chief of the USFS unilaterally and without any warning dumps Fire Management Plans in the trash, millions of people are denied due process. Those USFS actions will impact and destroy private property values, and public property as well that provides water and other values to citizens.

Denial of substantive public input and due process when landscapes, livelihoods, property, and lives are at stake is the mark of a dictatorship, not a constitutional republic. The implications are far-reaching and very serious. What kind of government do we wish to live under? Does America still possess a government of, by, and for the people? Is our Constitution still in effect?

23 Apr 2008, 10:27am
by Forrest Grump

I guess this is one more nail in the concept of federal agencies acting to uphold their public trust responsibilities, hmmm?
Sell/return the ground to the states. Let’s get this over with.

25 Apr 2008, 5:28pm
by bear bait

Now we are back to what happens when a private citizen steps out the back door in a legitimate attempt to preserve his life, liberty, and property with a back fire of his own right up against the Piss Fir Willy line. Is a private person protected in the same way public employees are?

The backfire deal is disingenuous now, because it is driven by a directive from the Auditor General of the USFS to keep, promote, or fire fire managers based on their fire suppression costs on a per acre basis. The more cheap acres you can add to a fire, the better your chance of surviving an audit. Therefore, the farther from the fire front you set the backfire, and the more acres you burn, the better you are doing your job.

The sad deal is to look at fire maps and see where the backfires never reached the fire front. Maybe it rained. Or the fire ran out of hoorah in a rock garden. The answer, then, is that you send in the “Hot Snots” to do burn outs of islands of fuel. How tough can that be? You already have the fuel area lined by the burn. You go in and take out that heralded “mosaic of burn treatments and unburned areas” that fires are supposed to produce at a benefit to the ecosystem.

Somebody is bullshitting somebody in all this fire benefit deal. You get what you say you want, and then to save your financial ass and your job, you go burn out the unburnt places within the burn, and the seed sources that might otherwise help with recovery. Don’t log, because you will disturb regrowth, but burn the islands so you can increase the acres, and “reduce” the fuels. That’s like the two Polish firing squads with one victim in the middle between them. Do you wonder if the USFS had Cormack McCarthy write their plan? No meaningful end but death and destruction, to make a place for the next generation of hopelessness and despair. Makes my skin crawl.

I don’t know, now, if Weyerhaeuser now gives a damn about timber. Maybe they are trying to figure out the Boise Cascade exit strategy. Boise Cascade became Office Max. Instead of a poorly run vertically integrated timber company, they are now an office supplies retailer. Cleaner work. And you don’t have to worry about running the store when you consume your inventory. You just order in more stuff to sell. They couldn’t order in more trees to cut. The USFS quit selling, and they had many more mills than land to support them. Do you want a ream of paper with that box of pencils? How about some sticky note pads? A calendar? And you want to know the joke on that deal? Both the Boise Lumber Co and the Cascade Lumber Company were once partially owned by Fred Weyerhaeuser in the 1930’s! And even today, the Weyerhaeuser Family is the owner of the Potlatch Paper Co. Preferred stock. The common stock holders sued Potlatch several years ago because the Preferred Stock got annual dividends (have to keep the real Timber Barons of today, the geriatric grand daughters and great grand daughters of the originals, in money so they can live the good life in Minneapolis or St. Paul, Chicago, San Francisco, or wherever they are now) and all the while Potlatch was showing losses and no dividends to common stock holders and their pension funds. It is not greed, but need that drives the process. Those old ladies need the money.

Potlatch owned the patents on the PrestoLog machines they leased to Weyco to make PrestoLogs out of planer shavings. Hmmmmm. Would ya wonder if all the dough was made by Potlatch on the deal, and it was their stock holders, not Weyco’s that got the dividends from PrestoLogs? And who are the Potlatch stockholders? Connect the dots… like Mike says, connect the dots… It ain’t rocket science. Northern Pacific RR headquartered in St. Paul. They sell the land to Weyco. Weyco has partners in every venture. You name it. Poles and piling, planing mills and cut up plants, wholesale lumber yards, railroads, pulp and paper, they got about as vertically integrated as they come. And now that is long gone. The world has changed.

25 Apr 2008, 6:07pm
by Mike

bear bait,

I appreciate very much that you did not use the term “inbred” in your remarks. That would have been in poor taste, and I would have had to edit it out.

26 Apr 2008, 4:43pm
by Pronatalist

Reply to bear bait and Mike:

I think one reason why you have to do backburns sometimes far from the fire, is because if the fire is “out of control” and spreading fast, you have to have enough distance and time for the backburns to do their work, before the main fire arrives. Also firebreaks have to be defensible, so they may have to go all the way out to some already cleared road or freeway, and not the first tiny river or stream on the map. But because backburns can add so much to the total burned acreage, that may not have burned naturally anyway, I see them as ineffective to “protect” mere unpopulated wilderness. There has to be some clear human-benefit reason to doing them. I have read claim somewhere, that backburns burn out more severely, than the actually fire, the “mosaic” patterns of natural burns, supposedly having some future “diversity” benefit. That could be partly due, to the much larger “ignition” source of fire-fighter drip torches and such, soon building a more solid and hotter fire-front, than from a “point” source such as lightning, that may spread more scatteredly?

One assumption that I am thinking under, is the adage that it usually costs more to “do something” than to “do nothing.”

Due process becomes more problematic, when certain special interests (i.e. “environmental” extremists) clog the courts with endless, circumvent the will of the people, litigation.

I am not so sure that every rich celebrity who builds some costly mansion out in the middle of nowhere, without reasonable defensible clearings, and not according to any reasonable firesafe design, can reasonably expect the taxpayer to pick up the tab for their fire suppression when the forest inevitably burns. So often I hear of the forest fire passing on, and then later, homes catch fire, pointing to poor design or maintenance issues, or excessive evacuations denying people opportunity to monitor for smoldering remnants of the forest fire landing near their home. But people should have that right to build where they want, and perhaps assume their own risk, especially if such an “unsafe” place that they can’t get insurance.

I am troubled by various conspiracy theories of ulterior motives, to “burn people off their land,” or the fire-fighting “industry” that may seem to profit by deliberately making the problem worse, in order to rake in more taxpayers dollars.

26 Apr 2008, 5:04pm
by Mike

Yes, conspiracy theories are troubling. That’s their purpose. They aren’t designed to ease your mind.

I take it then that you aren’t a rich celebrity? You don’t own a costly mansion? Don’t worry, come the Revolution, ain’t gonna be no more limousines.

26 Apr 2008, 5:47pm
by Pronatalist

Reply to Mike:

No, I am no celebrity, and can’t afford any fancy mansion right now.

But if I could, and decided a mansion not to be a huge waste of money that I could instead use to help other people, I would built it right, put in fire sprinklers, firesafe design, or whatever would reasonably be called for.

What “revolution?” The long overdue high gasoline price-gouging revolt?

But one thing to keep things in perspective. One can live in the forest for 50 or 100 years, and have not much happen. Then Poof! One day, it’s all gone, reduced to ashes. The forest soon grows back on its own, but it costs a lot of money to rebuild homes, a reason why people buy insurance. Or the house in the supposedly fire-prone forest may last for over 100 years, while the mansion on some beachfront topples into the ocean during some storm, or some houses in Very-Safe-ville, gets knocked down by some freak tornado. But houses aren’t designed to last “forever,” but only 50 years or so. Some buildings don’t even last that long. I think it such a waste, how quickly they tear down buildings not even that old, in Las Vegas, because they aren’t “trendy” or “in style” anymore. Sometimes the land plot is worth more than the structure upon it, just due to what could be built in place of it.

27 Apr 2008, 8:02am
by Mike

Sorry, I was a being a little obtuse. The limousine remark was a literary reference, to R. Crumb in the heady days of the 1960’s. Everybody was a revolutionary then.

You don’t like the rich building big homes? Sounds like class envy to me. But think of this: they pay thousands of times more taxes than you. When the fire dept. protects a town, all homes get the service, regardless of who paid what in taxes. The rich subsidize the fire protection for the poor. Just like they subsidize the roads, sewers, schools etc. Bill Gates pays hundreds of millions in taxes every year. You, Pronate, are getting a free ride, more or less. The rich are helping you, though you don’t seem all that grateful.

By the way, when forests go poof! they do not grow back on their own. That’s an urban myth. Forests very often turn into brush fields after catastrophic fires. Then those brush fields burn again after a few years. Permanent brush results, and the forest is no more. The Biscuit Burn is a good example of that.



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