BLM Prevails in Suit Alleging Negligence in Wildland Fire

Is the failure to comply with a policy evidence of negligence or proof that commanders had discretion?

A lawsuit filed against the Bureau of Land Management over its handling of the “Patch Springs Fire” in Utah in 2013, has been dismissed because fireground commanders were exercising discretion. The lawsuit was filed by three property owners, 4Sees, LLC, Jill Thomas, and Jane See alleging that BLM negligently managed the fire, resulting in their respective properties being damaged or destroyed.

The Patch Springs Fire began on August 10, 2013, in Tooele County, Utah on federal property managed by BLM. It began due to a lightning strike and burned over 31,000 acres including federal, state, and private land.

As explained in the decision:

• Firefighters from the BLM and Tooele County first responded to the Patch Spring Fire on the evening of August 10, 2013, and continued suppression efforts through August 12, 2013.
• The following day, Nate Hunter, a BLM employee, was named Incident Commander of the wildfire, which was categorized as a Type III incident at the time.
• At that time, federal and contract firefighters were allocated to the Incident Management Team.
• In addition, volunteer fire department resources from the area were made available to assist the IMT’s suppression efforts.
• On the evening of August 15, 2013, members of the IMT discussed the possibility of conducting a burnout operation with local Terra Fire Chief Gerald Neil.
• A burnout is a fire suppression tactic in which a fire is intentionally set at the edge of the wildfire in an attempt to consume fuel and prevent the wildfire from continuing to grow.
• The IMT decided not to conduct burnout operations at that time.
• Shortly thereafter, members of the IMT identified new fire activity and IC Hunter authorized burnout operations.
• For reasons that are disputed by the parties, the burnout operations were soon terminated by the overnight Incident Commander, Robert Newton.
• The following day, on August 16, 2013, another burnout operation was commenced under the direction of Division Supervisor Martell Gibbons.
• This operation was allegedly intended to prevent the fire from continuing to spread south, toward Plaintiffs’ property.
• The burnout operation was unsuccessful, however.
• The Patch Springs Fire continued to travel south, eventually burning onto Plaintiffs’ property and destroying Plaintiffs’ structures.
• Plaintiffs now bring suit, alleging that the Patch Springs Fire response was negligently managed and seeking to recover for their damaged and destroyed property.

The suit was brought under the Federal Tort Claims Act. The FTCA allows the federal government to be sued by waiving the sovereign immunity it otherwise would have. BLM moved for summary judgment arguing that the FTCA reserves immunity protection for actions that are “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.”

The plaintiffs countered that the mandatory language used in BLM’s policies and procedures removed the element of discretion from the incident commanders. The court disagreed citing rulings in prior wildland cases:

• When established governmental policy allows a government agent to exercise discretion… it must be presumed that the agent’s acts are grounded in policy when exercising that discretion.
• The burden to allege facts showing that the actions were actually not policy-oriented rests with the plaintiff.
• To illustrate the alleged lack of policy considerations underlying the BLM’s conduct, Plaintiffs identify four actions: (1) the Incident Management Team’s loss of control over the burnouts on the night of August 15, 2013; (2) the IMT’s decision to “ignore the pleas” of Terra Fire Chief Gerald Neil; (3) the IC’s failure to prepare a daily complexity analysis; and (4) the IC’s failure to notify Plaintiffs that firefighters were conducting burnout operations on their private property.
• The Government, to the contrary, argues that its discretionary conduct taken in the course of fighting the Patch Springs Fire is all susceptible to policy analysis and that Plaintiffs’ arguments are nothing more than negligence claims.
• None of Plaintiffs’ four alleged facts demonstrate that the disputed conduct is not susceptible to policy analysis.
• “The nature of the [BLM’s] actions in fighting the [Patch Springs] Fire are susceptible to a policy analysis grounded in social, economic, or political concerns.”
• “Indeed, the balancing of the needs to protect private property, ensure firefighter safety, reduce fuel levels, and encourage natural ecological development . . . are precisely the kind of social, economic, and political concerns the discretionary function exception was designed to shield from ‘judicial second guessing.'”

With that, US District Court Judge Jill N. Parrish granted the government’s motion for summary judgment, and ordered the case dismissed.

Here is a copy of the decision: