Point Fire, 1995
Island Fork Fire, 1999
Point Fire Case Study
Point Fire Accident Investigation
A. Point Fire Overview
D. Supporting Data
- Sequence of Events
- Organization Charts
- Site Investigation
- Fire Behavior Report
- Property Damage Report
- Witness Statements
- Outline of Kuna Wildland Training Provided by BLM
E. Records and Reports
- Preplanned Dispatch
- BLM Radio Transmission Log
- Ada County Dispatch Log
- Fire Incident Status Summary
- Escaped Fire Situation Analysis
- Wildland Fire Entrapment Report
- Technical Analysis of Personal Protective Equipment
- Vehicle Inspection
- Weather Reports
Island Fork Fire Accident Investigation
Point Fire — U.S. District Court Civil Case
Ruling on I.C.'s Decisions - Nov. 10, 1998
• Factual Background
• Legal Analysis
Ruling on BLM Liability - Feb. 19, 1999
• Legal Standards
Ruling on Public Safety Officer Benefits
Colorado Firecamp extends special thanks to Linda Perkins, BLM
Idaho State FOIA Coordinator, for her friendly assistance in gathering
the Point Fire documents. BLM FOIA Letter
MEMORANDUM DECISION AND ORDER
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
DEANNA C. BUTTRAM, et al,
UNITED STATES OF AMERICA,
Civil Case No. 96-0324-S-BLW
Civil Case No. 96-0452-S-BLW
Civil Case No. 97-0129-S-BLW
The plaintiffs—Joshua Oliver's father and the heirs of both firefighters—brought
this suit against the BLM under the Federal Tort Claims Act. The plaintiffs
claim that the BLM made many different negligent decisions that ultimately
caused the deaths of Buttram and Oliver. The BLM responds that its challenged
decisions are protected from attack by the discretionary function exception
to the FTCA.
The FTCA waives the Government's sovereign immunity for tort claims
arising out of the negligent conduct of its employees acting within the
scope of their employment. Gager v. U.S., 149 F.3d 918, 920 (9th
Cir, 1998), cert. denied, 1998 WL 686800 (Nov. 2, 1998). The
discretionary function exception of the FTCA is a statutory reservation
of sovereign immunity for a particular class of tort claims. Id.
The exception retains immunity when the claim is “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." 28
A two-step test determines whether the discretionary function exception
is applicable. First, “the exception covers only acts that are discretionary
in nature, acts that involve an element of judgment or choice.”
United States v. Gaubert, 499 U.S. 315 (1991) (quoting Berkovitz
v. United States, 486 US. 531, 536 (1988)). This requirement of judgment
or choice is not satisfied if a federal statute, regulation, or policy
requires a particular course of action. Id. at 322. Second, the
discretion exercised must be “of the kind that the discretionary
function exception was designed to shield,” Id. at 321-22.
The judgments and choices entitled to protection are those “grounded
in social economic, and political policy.” United States v.
Varig Airlines, 467 U.S. 797 (1984).
This second step of the test was discussed by the Supreme Court in Gaubert.
In that case, the Supreme Court reviewed an appeals court decision holding
that governmental officials are “only protected by the discretionary
function exception until their actions became operational in nature.”
Gaubert v, U.S., 885 F.2d 1284, 1289 (5th Cir. 1989), The Supreme
Court disagreed: “[O]nce the [court of appeals] determined that
some of the actions challenged by Gaubert occurred at an operational level,
it concluded, incorrectly, that those actions must necessarily have been
outside the scope of the discretionary function exception.” Gaubert,
499 U.S. at 326. This holding was consistent with the Court's prior holding
in Varig Airlines that “it is the nature of the conduct,
rather than the status of the actor, that governs whether the discretionary
function exception applies in a given case.” Varig Airlines,
467 U.S. at 813. Thus, even day-to-day managerial decisions could be protected
if they are “grounded in policy.” Gaubert, 499 U.S.
To answer discretionary function issues, several Ninth Circuit decisions
offer guidance. When a car accident victim sued National Park rescue personnel,
the discretionary function exception prevented her from asserting that
the rescuers should have had more life-saving equipment on hand, but did
not prevent her from showing that they failed to stabilize her spine and
render proper CPR. See Fang v. U.S., 140 F.3d 1238, 1242-43 (9th
Cir. 1998). While the allocation of Park resources is driven largely by
economic and policy concerns, these factors disappear when Park rescue
personnel are treating the victim at the scene of a car wreak. Id.
Another plaintiff in an accident case within a National Park—this
time a tour bus company whose passengers were injured when a roadway collapsed—could
challenge the Park Service's failure to maintain the road, but could not
challenge the initial design decision to construct the road without guardrails.
See ARA Leisure Services v. U.S., 831 F.2d 193 (9th Cir. 1987).
The guardrail decision was influenced by the policy to make the road a
scenic drive, and thus was immune from attack. The decision to forego
maintenance on eroded sections of the road, however, arguably violated
Park Service standards that required roads to “conform to the original
grades.” Id. at 195. The Ninth Circuit stated that “where
the challenged governmental activity involves safety considerations under
an established policy rather than the balancing of competing public policy
considerations, the rationale for the exception falls away and the United
States will be held responsible for the negligence of it’s employees.”
Id. (quoting Aslakson v. United States, 790 F.2d 688,
693 (8th Cir. 1986)). Although road maintenance within the Park was clearly
driven in part by economics, the Circuit held that “[t]he allocation
of funds among projects aimed at bringing [the Park] roads up to the standards
is not a decision of the nature and quality that Congress intended to
shield from tort liability.” Id. (quoting United States
v. S.A. Empresa de Viacao Aerea Rio Grandense, 467 US 797,813 (1984)).
When a mail-bomb victim sued the Postal Service, the discretionary function
exemption barred his claim that the Service should lave trained its workers
to recognize mail bombs. See Gager v. U.S., 149 F.3d 918 (9th
Cir. 1998). The Circuit held that the Service took economics and policy
into account in determining that training its 800,000 workers would be
too expensive, and that scouring packages for bombs would slow the mail
to a mad. Id. at 921-22.
The Circuit has instructed this Court that “[e]ach separate action
must be examined to determine whether the specific actor had discretion
of a type Congress intended to shield.” In re Glacier Bay,
71 F.3d 1447, 1451 (9th Cir. 1995). In making this review, however, the
Court must be careful not to parse the case too finely, and lose sight
of the big picture. General Dynamics v. United States, 139 P.3d
1280, 1284-85. The Court will therefore review each decision challenged
by the plaintiffs to determine if that particular decision is grounded
in social, economic, or political policy, keeping in mind the plaintiffs'
1. Pre-Fire Planning
Plaintiffs' complaint contends that the BLM was negligent in requesting
assistance from the Kuna RFD despite the lack of any formal mutual aid
fire suppression agreement between the BLM and the Kuna RFD. Plaintiffs
contend that such an agreement would have established standard operating
procedures for training, communications, leadership, and other issues,
that could have prevented the deaths of Buttram and Oliver. There is evidence
that an informal agreement was in place during the time of the Point Fire.
The informal agreement was approved by vote of the Kuna Fire Commissioners
in the early 1990s, but was never put into writing. See Cromwell Deposition
pp. 126-138. There is no evidence that the BLM and the Kuna RFD reached
any understanding in this informal agreement on the standard operating
procedures envisioned by the plaintiffs. It was apparently just an agreement
that the Kuna RFD could help the BLM fight fires on BLM lands, and that
the BLM could enter into Kuna RFD jurisdiction to fight wildfires that
had started on BLM lands. Id.
Whether the BLM's failure to enter into a detailed written agreement
is a discretionary act immune from challenge depends first on whether
the BLM had any choice in the matter. While plaintiffs have noted policies
that encourage such agreements, they have cited no policy or regulation
that requires the BLM to enter into such agreements. Thus, the BLM could
choose whether to enter into such an agreement, and “it must be
presumed that the agent’s acts are grounded in policy when exercising
that discretion.” Gaubert, 499 U.S. at 324.
The second requirement is satisfied if the failure to enter into a detailed
written agreement could have been influenced by social, economic or political
factors. There is no requirement that the BLM prove that the failure to
enter into the formal agreement was in fact influenced by social, economic,
or political factors, “The focus of the inquiry is not on the agent's
subjective intent in exercising the discretion conferred by statute or
regulation, but on the nature of the actions taken and on whether they
are susceptible to policy analysis.” Gaubert,
499 US. at 315 (emphasis added).
Here, the Court concludes that a decision by a federal agency as to
whether it should enter into a mutual aid agreement with a state political
subdivision inherently calls for the consideration of economic and political
issues. Such a formal, binding agreement would have required that the
BLM consider the budget and policy implications of committing its limited
resources to fight fires on lands over which it had no direct jurisdiction
or responsibility, in exchange for the benefits which could be reaped
by obtaining fire-fighting assistance from other agencies. To allow the
plaintiffs to challenge this determination, would be to allow them to
second-guess the political and economic decisions of the BLM. “The
purpose of the [discretionary function] exception is to prevent judicial
second-guessing of legislative and administrative decisions grounded in
social, economic, and political policy….” Gaubert,
499 U.S. at 323. The Court will therefore grant the Government's motion
for partial summary judgment to the extent that it seeks to preclude the
plaintiffs from introducing any evidence that the BLM failed to enter
into a detailed, written mutual aid agreement with the Kuna RFD as alleged
in paragraph VI of plaintiffs' complaint.
The plaintiffs attack, in paragraph XV of their complaint, other pre-fire
decisions made by the BLM:
Given the critical nature of the area (Priority II), the fuel loads,
weather conditions leading up to the dry and highly combustible fuels
with a concomitant high rate of spread (which in light of the predicted
weather, created a firestorm, or at a minimum, extremely hazardous conditions),
as well as demands being made on the BLM by fire suppression efforts,
the BLM should have taken steps to ensure that appropriate personnel
and equipment were available through the development of a pre-attack
plan and the pre-stationing of equipment, or if such a pre-attack plan
existed, the BLM failed to follow it.
At oral argument, counsel for the plaintiffs stated that they were withdrawing
these claims. The Court will therefore order that paragraph XV of the
complaint be dismissed.
2. Fire Management Decisions
The plaintiffs have challenged many decisions that the BLM made during
the Point Fire. The plaintiffs claim that the BLM was negligent in failing
to (1) hold a safety briefing after the red flag warning; (2) obtain spot
weather reports for the vicinity of the fire; (3) retain the helicopter;
(4) establish a command post; and (5) order that retardant be applied
to the fire by air. see footnote #3
The person ultimately responsible for each of these alleged failings
was I.C. Kerby. The Court will assume, for the purpose of this motion
only, that Kerby was not required by regulation to do any of the things
listed above--in other words, that he had a choice to make. This brings
us to the issue of whether Kirby's choices were grounded in social, economic,
or political policy. On that matter, the BLM submitted the Declaration
of Roy Johnson, the BLM's Chief of Operations in the National Office of
Fire and Aviation. Johnson states that in making decisions like those
listed above, an I.C.
must make environmental, social, economic, and political policy decisions
such as balancing issues regarding firefighter and public safety, the
threat of damage to private property, the threat of damage to natural
resources, the impact of suppression efforts on natural resources and
private property, the cost of suppression and the cost of rehabilitation.
Declaration of Johnson at 37, p. 17.
The Court agrees that decisions of the type described by Johnson are
policy decisions protected by the discretionary function exception. In
another case involving challenges to the firefighting decisions of an
I.C. for the Forest Service, the court stated that “[i]n evaluating
alternative courses of action, establishing priorities and assigning government
personnel and equipment, an Incident Commander must make social and economic
policy decisions, such as balancing the threat to human lives (including
the risk to crew safety) against the threat to private homes and other
structures, and natural resources.” Parsons v. United States,
811 F.Supp. 1411 (E.D.Cal. 1992). One of the decisions challenged in that
case was a decision to set a backfire to protect private land that was
in the direct path of the fire. The private landowners claimed that the
backfire was improperly set, and allowed the fire to destroy timber on
their land. The District Court found that the decision to set the backfire
"involved both technical considerations at the operational level
and the implementation of discretionary regulatory efforts." Id.
The policy aspect of the decision was the desire to protect private property.
This was enough for the Court to conclude that the decision was protected
by the discretionary function exception even though the backfire decision
also involved technical, operational considerations that had nothing to
do with social, economic, or political concerns. Id.
In another firefighting case, the I.C. was challenged for deploying
only a three-man crew to attack a fire that quickly grew out of control.
See Defrees v. United States, 738 F.Supp. 380 (D.Or. 1990). The
District Court found that decision immune from attack because
[i]n establishing priorities, assigning government personnel and equipment,
and deciding what private resources, if any should be used, these employees
were required to make social and economic policy decisions. They were
required to balance the value of communications installations, private
homes, endangered species, and other resources.
Id. at 385.
The Court agrees in general with both Parsons and Defrees.
Both cases are certainly consistent with the Supreme Court's admonition
in Gaubert that even operational decisions made “on-the-scene”
can be grounded in policy and hence be immune from attack. An I.C. may
decide to let structures burn because suppression efforts would put the
safety of his men at risk. That is an operational decision made at the
scene of the fire, but it is clearly a decision grounded in policy considerations
and hence immune. At the same time, the I.C. is making many decisions
having nothing to do with social, economic, and policy considerations.
It becomes very difficult at times to separate out the various influences,
and Parsons was wise in recognizing the mixed quality of many
of the I.C.'s decisions.
In the present case, decisions (1), (2), and (4), listed above had much
less of the mixed quality that was apparently present in Parsons.
In fact, the important social, economic, and political policy decisions
had already been made for I.C. Kerby, with regard to these three decisions.
He was guided by existing BLM policies to aggressively attack the fire
and protect the Birds of Prey Area. He knew from existing policies what
resources he could call up depending on the severity of the fire.
These policies freed Kerby from having to make the social, economic,
or political decisions that fall within the discretionary function exception.
Thus, Kerby did not have to decide whether this fire was worth fighting
at all. That decision was made for him by BLM policies. Kerby did not
have to sit down with the BLM budget and determine how many engines he
could afford to dispatch. That decision was in large part dictated by
the severity rating of the fire, as previously discussed. Kerby did not
have to determine whether suppressing fires in this area might change
the ecosystem in a way that harmed the nearby raptors of the Birds of
Prey area. That decision had already been made for him. These decisions
that had already been made for Kerby are the type of social, economic,
and political decisions that fall within the discretionary function exception.
Kerby was instead faced with making the same type of decisions faced
by the rescue personnel in Fang who tended the car accident victim:
Quick decisions at the scene of an emergency influenced mainly by factors
unique to that emergency rather than broad policy concerns. When an I.C.
decides to forego a safety briefing after a red flag warning, or decides
that a command post is not needed, that decision is based on the behavior
of the fire, the weather conditions that day, the experience of the firefighters,
the time constraints on the I.C. (he cannot be everywhere at once), and
other similar factors that have little to do with policy.
Cost is always a consideration, but ARA makes it clear that
decisions are not rendered immune simply because cost may have played
a role, however small, in the decision. The cost considerations in decisions
(1), (2), and (4), listed above are so insignificant that they fail to
rise to the level of triggering immunity.
BLM counsel argued at oral argument that the plaintiffs are really attacking
the policy that gives an I.C. discretion to fight the fire. There is no
doubt that the BLM policies give the I.C. great discretion. However, if
that fact alone barred any challenges, the inquiry would stop after the
first step of the two-step discretionary function analysis. In other words,
the Government essentially asserts that if the I.C. is given a choice
by regulations, there is no need to determine whether the discretion involved
social, economic, or political factors. The Court therefore declines to
adopt the Government's reasoning on this issue.
However, the I.C.'s decisions to not retain the helicopter and to not
call for retardant are different in nature. Those decisions are driven
in major part by resource allocation and cost considerations. In this
case there were other fires burning, and the I.C. had to make policy decisions
about the allocation of resources. The use of the helicopter and retardant
is expensive. The BLM policy provides that “[f]ire suppression actions
must be planned and executed to minimize suppression cost plus resource
losses.” The Court agrees with Defrees that me allocation
decisions—using the helicopter and retardant in this case—are
immune from challenge. See also, National Union Fire Ins. v. United
States, 115 F.3d 1415, 1422 (9th Cir. 1997) (holding that when regulations
give the government agent the discretion to balance costs with other factors,
then “considering the cost of greater safety is a discretionary
function.”), cert. denied 118 S.Ct. 1053 (1998).
3. BLM’s Relationship with Kuna RFD Firefighters
The plaintiffs claim that the BLM knew that the Kuna RFD firefighters
were poorly equipped and trained, because they had fought fires together
on prior occasions. It is undisputed that the BLM knew that the Kuna RFD
did not meet the training and experience standards set by the National
Wildfire Coordinating Group (NWCG). The BLM Manual on Fire Training ad
Qualifications. § 9215.11E, states that “[p]ersonnel from other
agencies who do not subscribe to NWCG qualifications standards may be
used on BLM managed fires. BLM fire managers need to ensure these individuals
are assigned duties commensurate with their ability and agencies' qualifications.”
Plaintiffs claim that § 9215.11E required I.C. Kerby to limit the
assignments he would give to Kuna RFD firefighters since he knew that
they did not meet NWCG standards, and knew they were inexperienced and
ill-equipped. Plaintiffs further allege that Kerby failed to give safe
assignments to Buttram and Oliver, and failed to monitor the safety of
these two inexperienced firefighters.
The BLM's policy under § 9215.11E, Roy Johnson responds, is that
“the [I.C.] assumes that if the rural fire department dispatches
crews to perform a specific function, such as working on the fireline,
those crews have the ability and are certified under their agency's qualifications
to perform such duties.” Declaration of Johnson, 52 at
p. 22. Johnson goes on to explain that this interpretation of § 9215.11E
is necessary because
it would be politically unacceptable to attempt to prevent rural fire
departments, who do not meet BLM's standards, from assisting in the
suppression of wildfires on public lands that threaten their fire protection
districts; given BLM's aggressive initial attack policy, an [I.C.] does
not have the time to check, nor the knowledge, to ensure rural firefighters'
qualifications and equipment meet their agency's; and the benefit of
a coordinated initial attack on fires on lands that threaten jurisdictions
of two different firefighting entities.
Id. 53 at p. 23.
In this statement, Johnson rationalizes the BLM's deviation from its
own stated policy. The policy set forth in § 9215.11E is clear: The
I.C. must ensure that non-NWCG firefighters are assigned to duties commensurate
with their ability and qualifications. The policy puts this responsibility
squarely an the I.C., not on the chief of the rural fie district, as Johnson
would have it read. There is no doubt that this requirement is an onerous
one. But it nevertheless is a mandatory commandment. Because § 9215.11E
does not permit the discretion claimed by the BLM—in other words,
does not permit the I.C. the discretion to assume qualifications—the
alleged violation of the policy does not fall within the discretionary
function exception and the Government's motion for partial summary judgment
on this issue will be denied.
In summary, the Court will grant in part and deny in part the Government's
motion for partial summary judgment. The Court will dismiss paragraphs
VI and XV from the complaint and dismiss be allegations regarding the
use of the helicopter and retardant in paragraph. In all other respects,
the Government's motion shall be denied.
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the Government's motion for partial
summary judgment (docket no. 68) is hereby GRANTED IN PART AND DENIED
IN PART. The motion is granted to the extent it seeks to dismiss from
the complaint paragraphs VI and XV and allegations that the failure to
use the helicopter and retardant was negligent. In all other respects
the motion is denied.
Dated this 10th day of November, 1998.
/s/ B. LYNN WINMILL
UNITED STATES DISTRICT COURT
At oral argument, counsel for the plaintiffs indicated that they
were not pursuing seven additional contentions relating to the
management of the Point Fire: (1) the failure to classify the
Point Fire as a Type II Incident, (2) the failure to use computer
modeling to predict fire behavior, (3) the negligent setting of
burnouts, (4) the failure to use foam to suppress the fire, (5)
the failure to assign the bulldozer to the proper flank of the
fie, (6) the failure to properly estimate fire spread so as to
predict the time before blowup, and (7) the failure to rescue
the stranded firefighters. These claims are dropped as to all