Colorado and Fire District Sued for $60 Million Over Black Forest Fire

Sixty Colorado residents have filed a pro-se lawsuit against the state, El Paso County, and the Black Forest Fire District over the Black Forest Fire that occurred in June, 2013. The fire, which the suit claims began in part due to a controlled burn, consumed 15,000 acres, destroyed over 500 homes, and killed two people.

The suit was filed last month in US District Court for the District of Colorado alleging negligence, violation of certain plaintiff’s 1st Amendment rights, and a deprivation of property in violation of the 14th Amendment’s due process clause. It seeks $1 million in actual damages for each of the sixty plaintiffs, (ie. $60 million), plus an award for emotional distress.

From the complaint:

  • Prior to June 11, 2013, Scott Campbell, all members of the El Paso County Commissioners, the County attorneys, the Black Forest Fire Board, Robert Harvey, and all the firemen of the Black Forest Fire Department had personal knowledge that there existed very dangerous conditions in Black Forest, concerning fires.
  • Defendants, State and County failed to timely, adequately, and reasonably use the resources available to them.
  • Defendants, State and County through Robert Harvey, failed to timely turn over command to his superiors.
  • June 11, 2013, Defendants, State and County, through Scott Campbell, the El Paso County Assistant Deputy Fire Marshal, ignited a control bum in Black Forest, Colorado.
  • As a result, the control bum got out of control and caused millions of dollars in damage. Real and personal property was lost in the destruction, approximately 485 homes, wrongful death of two civilians, many animals, and injuries to an unknown number of other animals, and 15,000 acres burned.
  • The control bum should be named the TWIN FIRE, because it became the major part of the Black Forest Fire and was as destructive or worse than the Black Forest Fire.
  • As a result of the control bum getting out of control in Black Forest, it was the legal proximate cause of the Black Forest Fire to become the most destructive firein Colorado history.
  • Defendants, State and County had a policy, either formal or informal, of allowing their resources to be depleted before calling for assistance.
  • Defendants, State and County and their employees failed to timely, adequately, and reasonably communicate with each other to timely, adequately, and reasonably contain and extinguish the Fire.
  • Defendants, State and County failed to have proper equipment to contain and extinguish the Fire.
  •  The State and County’s customs and policies are outdated, ineffective, and were the legal proximate cause of losses and damages to Plaintiffs.

The complaint goes on to list a pattern and practice of failing to properly “contain and extinguish” wildland fires in the past, and chronicles 11 major fires in Colorado including:

  • 1994, the South Canyon fire, 14 firefighters died, and 2, 115 acres burned.
  • June 20, 2000 the Bircher fire five people injured 22,000 acres, firefighting cost $5,600,000.00.
  • June 2002 Missionary Ridge fire, death of one firefighter, 73,000 acres, 56 homes destroyed, firefighting cost $40,000,000.00.
  • 2002, the Hayman fire five firefighters died,137,760 acres 733 structures destroyed, firefighting cost $39,000,000.00.
  • 2002, Big Elk fire, 4436 acres, death of three firefighters, firefighting cost $ 4,000,000.00.
  • 2012 the High Park fire took the life of one person and 87,284 acres, insurance claims $97,100,000, firefighting cost $39,200,000.00.
  • 2012, the Lower North Fork fire started by the State, took the lives of three civilians,
  • June 23, 2012 the Waldo Canyon fire destroyed 346 homes, 18,247 acres burned, insurance claims at $352,600,000.00.
  • June 11, 2013 the Royal Gorge fire destroyed property 3,800 acres and started the same day as the Black Forest fire.
  • June 19, 2013 the East Peak fire 13,572 acres burned.
  • June 20, 2013 West Fork fire Complex caused the evacuation of the entire town of South Fork, Colorado, 110,405 acres burned.
  • The current custom and policies are outdated, ineffective, and are the legal proximate cause of losses and damages to Plaintiffs.

According to the suit, plaintiffs lost buildings, vehicles, equipment, pets and livestock in the fire. The suit also makes the following noteworthy allegations:

  • Defendants, State and County through the Black Forest Fire Board, Bracken, Cooper, and Seelye misused public funds when hiring a private investigating group, Dave Fisher, Fisher Enterprises, LLC, and a private attorney, at a cost of $200,000.00 (misusing taxpayers funds) to investigate the Black Forest fire, unreasonably, undermining, and interfering with the Sheriffs duties.
  • Defendants, State and County, through Ed Bracken, The Fire Board, Dave Fisher, and Fisher Enterprise unreasonably concealed the findings if the investigations from the general public including the plaintiffs.
  • At the time of filing this complaint, the Fire Board’s successors in office are concealing the findings of the investigation from the general public, including the plaintiffs.
  • At all times herein relevant, Bracken, Cooper, and Seelye were employees of the County, and authorities under State Law as Chairman of the Black Forest Board, and two Board members of the Black Forest Fire Board.
  • Shortly after June 11, 2013, during a Board Meeting Ed Bracken, Preston Cooper, and Walt Seelye, as members of the Black Forest Fire Board told people attending the meeting to shut their mouths, refused to allow anyone to speak, and physically forced some persons including Plaintiff, Darrell Fortner out of the building.
  • All of the plaintiffs were peaceful and all they wanted to do was to speak and be heard, but Bracken, Cooper, and Seelye would not allow these people to speak.
  • June 11, 2013 Defendants, State and County through, Scott Campbell pulled a 2,000 gallon water tanker and several firefighters from of the main Black Forest fire in order to protect the home of their co-worker, Bob McDonald.

Here is a copy of the complaint:Fortner v State of Colorado

You will notice that it is partially handwritten and partially typed with the typed portion appearing to have been prepared by someone with at least some legal background.

Ordinarily it would seem rather peculiar that a suit for $60 million would be filed pro-se. However, during major disasters once a declaration of a state of emergency/disaster has been made, emergency responders are cloaked with additional immunity protection over and above the immunity they have normally. That additional “disaster” immunity makes it difficult to hold state and municipal agencies responsible in tort. The reality of the broad immunity protection may have dissuaded members of the plaintiffs’ bar from taking the case.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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