Fighting Fire With Litigation

Last month, Hotshot crews on the Lolo Creek Complex fire in Montana burned out areas of green grass, brush and timber between U.S. Highway 12 and the wildfire in the hills north and south of the road – eating up the fuel under controlled conditions, so there would be nothing to turn embers into new spot fires if the wind direction blew back toward people’s homes.

In much the same way, incident commanders at the 200,000-acre Rim fire near Yosemite National Park have been using burnouts to protect 4,500 residences and the Hetch Hetchy Reservoir that provides San Francisco’s drinking water.

13 years ago, firefighters battling the 17,000-acre Ryan Gulch fire set a series of burnouts in the hills near Clinton, Montana.

Some of that intentionally set fire ruined about 900 acres of timber and pasture on the Weaver family ranch. The Weavers sued the state, arguing that firefighters on the scene were “freelancing” as they used drip torches to light fires that weren’t planned for or properly located.

Last year, a Granite County District Court jury awarded the Weavers $730,000 in damages from the state of Montana. 

Montana has appealed the Granite County decision to the state Supreme Court. It argues it should be immune to such claims because of the “public duty doctrine,” which should protect it when performing public services like firefighting.

“Under Weaver’s arguments, state actors responding to an emergency would be consumed with recordkeeping, with an eye toward future litigation, rather than focusing on the crisis and public safety,” state’s attorney Robert Sheridan told the Supreme Court. “Reducing the courts to an open forum for prospective plaintiffs to second-guess every act or omission of government ... would unduly constrain the discretion critical to employ Montana’s limited resources to promote the general welfare.”

Quentin Rhoades, the Weavers’ attorney, countered that the Ryan Gulch fire trial proved firefighters acted contrary to their own rules and procedures when the Weavers’ land got burned. He added the team on the scene, which was from Florida, used tactics that might work in the flat, wet Southeast but were inappropriate for Montana’s dry mountains.

“This was a situation where local firefighters were using non-firing techniques, against Florida firefighters burning everything in sight,” Rhoades said. “The local Montana firefighters took a more cautious approach because of superior knowledge of fire behavior in western mountains.”

Did the Weaver family suffer actual damages at the hands of the Florida fire fighting crew? 

No doubt they did.

Could those damages have actually been worse if the backfires had not been set.

No way to know after the fact, but the possibility certainly did exist.

It’s hard to say what’s fair in this case, but I’m leaning toward the State.  To me, the Weavers seem like the patient with gangrene whose life is saved by amputation and then sues the surgeon over the loss of a limb.