Federal liability for fires it starts

This topic has come up a few times, and the Missoulian did a little legal research on it for us, but I think it’s incomplete.  In short, federal agencies are protected by sovereign immunity against claims of damages, and its employees are protected when performing their official duties – even if negligent.  What this article doesn’t make very clear is that the government has consented to be sued for negligence through the Federal Tort Claims Act:  “Under the FTCA, 28 U.S.C. §§ 2671-2680 , individuals who are injured or whose property is damaged by the wrongful or negligent act of a federal employee acting within his or her official duties may file a claim with the government for reimbursement for that injury or damage.”

In the Davis Fire example, the article says the court found that “the United States was immune from the litigation.”  But then it seems to address the question of negligence:  “In the government’s review of the Davis fire, it found that Forest Service officials had adequate training, followed proper protocols and ignited the fire within the prescription parameters of the burn plan.”  (I couldn’t find the actual opinion.)  So, while this story makes the FS look pretty bad, on another set of facts that show negligence, private landowners should be able to recover damages.

9 thoughts on “Federal liability for fires it starts”

  1. There have been other cases where the USFS has been sued for negligence and lost, but in most cases it drags out for years and the AG has to review the case to decide if they will accept the suit before it can even proceed. Unfortunately, private landowners don’t have this option nor do they have the deep pockets of the federal taxpayers to fund their legal battle.
    The laws need to be changed, to bring an even playing field to the responsibilities of land ownership/management. Negligent employees also need to lose their sovereign protection. If they aren’t negligent and working within their scope of training and/or experience then they should still be protected.

  2. Interesting article Jon-
    As the article alludes, but doesn’t state, is the basic fact that under FTCA the federal courts are required to apply state statutory law, which is why the results differ depending upon which state the suit is brought in.
    It just so happens I recently sued a city and had to do the analysis on the Idaho Tort Claims Act — which is exactly what the U.S. District Court for Idaho would look at in these circumstances. Here you go:

    —->Sovereign immunity may preclude recovery in a negligence action Id. But in Idaho, a statutory avenue of relief exists under the Idaho Tort Claims Act. I.C. § 6-903 et seq. The Act is structured in three tiers: The general rule is that governmental entities are liable for damages arising out of their own negligent or otherwise wrongful acts and for those of their employees who were acting within the course and scope of their employment. The second tier then sets out certain exceptions to liability. The third tier states that the exceptions to liability do not apply if the acts were committed with malice or criminal intent Grant v. City of Twin Falls, 120 Idaho 69, 813 P.2d 880 (1991).

    The first tier is outlined in I.C. § 6-903(1) titled “Liability of Governmental Entities” stating in relevant part “every governmental entity is subject to liability for money damages arising out of its negligent or otherwise wrongful acts or omissions and those of its employees acting within the course and scope of their employment or duties … where the governmental entity if a private person or entity would be liable for money damages under the laws of the state of Idaho … which is attributable to the negligent or otherwise wrongful acts or omissions of the governmental entity or its employees. The second tier is outlined in I.C. § 6-904(1) titled “Exceptions to Governmental Liability” stating that a governmental entity and its employees while acting within the course and scope of their employment and without malice or criminal intent shall not be liable for any claim which:

    Arises out of any act or omission of an employee of the governmental entity exercising ordinary care, in reliance upon or the execution or performance of a statutory or regulatory function, whether or not the statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused.

    This is the so-called “discretionary function” exception to liability Ransom v. City of Garden City, 113 Idaho 202, 743 P.2d 70 (1987). This exception applies to government decisions entailing planning or policy formation. Id. The exception utilizes the “planning/operational” test to demarcate decisions involving the formation of basic policy, entitled to immunity, from decisions involving the execution or implementation of that policy, not entitled to immunity. Id.

    In applying the planning/operational test, the first step is to examine the nature and quality of the challenged actions. Routine, everyday matters not requiring evaluation of broad policy factors will more likely than not be operational, while decisions and actions which involve a consideration of the financial, political, economic and social effects of a given plan or policy will generally be planning and fall within the discretionary function exception. Second, the policies underlying the discretionary function exception must be considered, and the policies are twofold: (1) to permit those who govern to do so without being unduly inhibited in the performance of that function by the threat of liability for tortious conduct, and (2) to limit judicial re-examination of basic policy decisions properly entrusted to other branches of government. Bingham v. Franklin County, 118 Idaho 318, 796 P.2d 527 (1990). Whether or not a city ordinance embodies a discretionary planning decision, the city cannot avoid the tort claims act simply by enacting general disclaimers of liability. Municipalities can decide whether or not to undertake particular responsibilities; they cannot define through ordinances the legal consequences of these decisions. To hold otherwise would render the discretionary function exception meaningless. Tomich v. City of Pocatello, 127 Idaho 394, 901 P.2d 501 (1995). (2) (i) A governmental entity shall provide a defense to its employee, including a defense and indemnification against any claims brought against the employee in the employee’s individual capacity when the claims are related to the course and scope of employment, and be responsible for the payment of any judgment on any claim or civil lawsuit against an employee for money damages arising out of any act or omission within the course and scope of his employment; provided that the governmental entity and its employee shall be subject to liability only for the pro rata share of the total damages awarded in favor of a claimant which is attributable to the act or omission of the employee … “ <—-

    Meaning, you caption the people closest to the ground & not having any decision making power in the grand scheme of things in their individual capacities, and the government has to indemnify them out of it’s insurance fund if negligence is found. Then, you go for summary judgment straight out of the gates because it’s obvious SOMEBODY on the ground F’d up. The government should be looking to settle shortly thereafter … which is what you are really looking for to keep costs down for the clients.

  3. Thanks, Eric. Here’s the part of the Davis fire story that got may attention: “Officials knew they had an approaching cold front with high winds, plus Lewis and Clark County issued a burn ban for private residents, but conditions met the requirements of the burn plan, and spot weather forecasts indicated they could complete the burn in the time allotted.” If the problem was the burn plan, is that likely to be immune because it is planning rather than operational? Or, even though it is called a “plan” could it be viewed as an operational tool to achieve broader planning goals (of say a forest plan)?

    • Here is the money quote from my post above Jon: “The exception utilizes the “planning/operational” test to demarcate decisions involving the formation of basic policy, entitled to immunity, from decisions involving the execution or implementation of that policy, not entitled to immunity. Id.

      I messed up posting my last comment (which is why it got all squished together at the end). Some of what I was going to say didn’t post, which was, that it seems to me the attorney that is whinging in the article did a crap job of presenting the argument and the fed lawyer jumped on it.

      The key is “formation of basic policy” vs. “execution or implementation of that policy.” At least in Idaho, legislative notes indicate that when contemplating the act, they wanted to protect people who were sitting around in rooms making broad policy decisions: legislators, commissioners, council members, etc., who weren’t really in a position to actually BE negligent by “executing or implementing” the policy. That’s the grunts. They figured it was the actual police, firefolk, dog catchers, and all that would be interacting with the public who had the opportunity to do careless harm. My suit against the city is against a cop and I will survive summary judgment based on the immunity motion. However, I’ll probably lose on my claims going after the “supervisors” who must be pursued through negligent supervision, hiring, and training claims — much harder to prove.

      Here, the facts seem directly on point for a plaintiffs win. The “burn plan” may have been the “policy” immunizing the higher ups, like my wife, who write them. But somebody on the ground in this case knew what the burn plan was and still “implemented” the “plan” in the face of risk that a reasonable person would not have taken, ie. negligence.. That’s why I said what I did in my last comment. You have to caption the people in the complaint who are holding the drip torches in their “individual” capacities b/c the government entity is forced to indemnify the individuals by statute one way or another.

      Like I said, this guy just got out lawyered.

  4. The Federal Tort Liability Act provides the government some degree of immunity in exercising their discretionary functions like hazard tree management. For instance, the Great Smokey Mountains National Park Service was found not liable for failing to remove a tree weakened by root rot that fell and killed a recreational motorist, even when the road involved was a high use paved road near a visitor center, and when the tree species at issue (Black Locust) was known by the Park Service to be prone to fall down. AUTERY v. UNITED STATES 992 F.2d 1523 (11th Cir. 1993). http://classweb.gmu.edu/erodger1/prls560/content/autery.htm. The appeal court overturned the district court and held that the agency’s balancing of public safety and preserving natural areas prevented judicial second guessing and gave them immunity from liability for the death of the motorist.

    Based upon the evidence in this case, the appeals court held that “the decisions made by GSMNP personnel in designing and implementing its unwritten tree inspection program fall within the ambit of the discretionary function exception.”

    Although the district court may have disagreed with the balance struck by the Park Service, or believed that some other policy would have been better, the discretionary function exception is designed to protect against just this type of “judicial ‘second-guessing”…
    To decide on a method of inspecting potentially hazardous trees, and in carrying out the plan, the Park Service likely had to determine and weigh the risk of harm from trees in various locations, the need for other safety programs, the extent to which the natural state of the forest should be preserved, and the limited financial and human resources available. Indeed, the district court recognized this when it criticized the Park Service for elevating he overriding policy considerations of protecting the trees and the natural state of the area over the safety of humans using the park roadway.

    This means that the agency is free to weigh the value of snags for wildlife and other ecosystem services and need not reflexively cut down every hazard tree.

    • Which, in the cases we are contemplating I would argue is distinguishable b/c the imminence of harm due to lighting a fire requires “individualized” burn plans, vs. a once size fits all approach policy to hazard trees.

    • By definition, if it is a “hazard”, it can impact the road, or any of its functions (including ditches, bridges and culverts). Some people like to say that Hazard tree projects affect all lands within 300 feet of each road. They compile acreages, based on that flawed idea. Simply put, if an 80 foot snag is 100 feet away from the edge of a road’s ditch, then it probably isn’t a “Hazard Tree”. If a snag leans away from the road, it’s not a “Hazard Tree”. If the snag is 120 feet below the road, on a moderate slope, then it probably isn’t a “Hazard Tree”.

  5. That is all very deep into legalese, which is of course appropriate, because it’s a legal question. When the forests had more hazard trees than we could possibly treat, and closing all forest roads for safety was not a viable option, I think I remember our lawyers saying that we needed a reasonable plan for what we could do to prioritize and get to the hazard trees and that would help us in court if someone took us there based on injury or death. My memory could well be wrong- does that make sense to you?

    I also remember a forest clearing dead trees from around dispersed camping areas, and the campers just moved their campsites back into the dead trees (despite warning posters, etc.). My other observation from bark beetle epidemics is that there is no shortage of snags for wildlife, even if you removed every hazard tree-because hazard trees are associated with roads and most of the acres are not next to a road. Landscape scale fires I would think are the same way.


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