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Backfire 2000 vs. United States

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FILED MISSOULA, MT
2006 SEP 5 PM 4 13

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

BACKFIRE 2000 (an ad hoc citizen's
group which is comprised of
individual plaintiffs), et al.,
Plaintiffs,

vs.

UNITED STATES OF AMERICA,
Defendant


ALLSTATE INSURANCE COMPANY, as
subrogee of Larry Baecht, et al.,
Plaintiff,

vs.

UNITED STATES OF AMERICA,
Defendant.


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CV 03-198-M-DWM


ORDER


CV 03-201-M-LBE

V. Analysis (continued)

C. First prong of the discretionary function exception: The Government employees' actions were discretionary, and were not specifically prescribed by some statute, regulation, or policy.

1. Forest Service policies in place on August 6.

Plaintiffs point to several Government documents to support their claim that certain aspects of the Government's activities that give rise to this suit were specifically prescribed by Government policy and therefore were not discretionary.

a. Wildland Fire Situation Analysis for Sula Complex.

A Wildland Fire Situation Analysis (WFSA) for the Sula Complex was prepared on August 5. The WFSA identified firefighter safety, aviation safety, public safety, and minimizing the loss of improvements (residences and businesses) as the top objectives in the Sula Complex. Regarding firefighter safety, the WFSA directed:

Maintain safety by anchoring all tactical actions to the 10 Standard Fire Orders. Don't bend or break them. Utilize LCES to identify and mitigate the 18 Watchout Situations prior to initiating any tactical actions. If tactical hazards cannot be mitigated don't implement them.

Firefighter and aviation safety were to be the highest priority.

Regarding public safety, the WFSA stated:

The Forest has been closed to public use. Numerous drainages located along the west side of Hwy 93 along the East Fork Bitterroot River as well as the upper East Fork have been evacuated. Trigger points for evacuations must be determined and reviewed with the Forest Supervisor. Forest LEO'S will serve as liaisons with the County Sheriff to implement evacuations.

Finally, with regard to structures, the WFSA directed the team to "[m]inimize loss of residences and businesses by preparing an inventory, utilizing a risk assessment process that outlines and prioritizes protection measures . . . in consultation with the Resource Advisor. "

The WFSA considered three alternatives for fighting the fires in the Sula Complex and selected Alternative B, a Modified Attack/Confine Plan. Alternative B directed the following actions:

  • Any combination of direct, parallel or indirect strategies to control the fire(s). Use the light fuel areas to construct line and burn out to protect communities, structures and highest priority resource values.
  • Use aggressive suppression methods to keep all new starts within the urban interface to the smallest possible size.
  • Ensure for firefighter and public safety while implementing structure and resource protection.
  • Focus control suppression strategies activities that will maximize short and long term protection of structures and private property.
  • A monitoring strategy should be considered on fires within the complex downwind from fires that have not been contained or when weather conditions or lack of sufficient resources make for low probabilities of meeting tactical objectives.
  • Develop trigger points for evacuation for all communities within the fire area. Work closely with Ravalli County Sheriff and local agencies and implement Unified Command with all jurisdictional agencies.

The rationale for choosing Alternative B was that "due to lack of available resources, extreme fire behavior, the potential for a long duration event, and the proximity to numerous other large fires," a direct attack on the fires (Alternative A), the method normally preferred, was not feasible in the Sula Complex. The rationale explained further: "Priorities are protection of life and property. Alternative B provides the team the flexibility to utilize tactics that achieve these goals and to make progress to confine the fires and for reducing resource losses when conditions are favorable."

b. Incident Action Plan for Sula Complex, Division Spade.

Joe Stam prepared a Daily Incident Action Plan (IAP) for August 6 activities in the Sula Complex. The IAP provided the following special instructions to the Division Spade team: "Establish communications. Designate safety zones and escape routes. . . . If initiating a burnout, make sure everyone knows before you begin."

The IAP also directed the Division Spade team to "[hlold all existing line," and "[p]rotect structures along west fork." Joe Stam testified in his deposition that his statement to "make sure everyone knows before you begin" initiating a burnout meant that all those in Division Spade who were involved in the firing operation, including the Division Supervisor, should know that a burnout operation is about to occur.

c. Ten Standard Fire Orders.

The Fireline Handbook contains the Ten Standard Fire Orders referred to in the WFSA. As indicated in the WFSA, the Orders are mandatory. The Ten Standard Fire Orders are as follows:

(1) Fight fire aggressively but provide for safety first.
(2) Initiate all action based on current and expected fire behavior.
(3) Recognize current weather conditions and obtain forecasts.
(4) Ensure instructions are given and .understood.
(5) Obtain current information on fire status.
(6) Remain in communication with crew members, your supervisor and adjoining forces.
(7) Determine safety zones and escape routes.
(8) Establish lookouts in potentially hazardous situations.
(9) Retain control at all times.
(10) Stay alert, keep calm, think clearly, act decisively.

2. The Government employees' acknowledged August 6 firing operations were discretionary.

The primary inquiry under Berkovitz's first prong is whether the applicable Forest Service policies were mandatory instructions that left no room for discretion. According to Plaintiffs, the firefighting policies and directives discussed above prescribed Defendant's actions on August 6 such that there was no room for judgment or discretion. Citing Berkovitz, 486 U.S. at 544, Plaintiffs assert that the discretionary function exception does not apply because the Government failed to act in accord with mandatory directives. Plaintiffs argue Government firefighters should not have lit a backfire at all, but should have at least ascertained who was in the area and warned them - firefighters and residents alike - that backfires might threaten their safety and property.

In Re Glacier Bay involved allegations that Government hydrographers were negligent in failing to follow mandatory agency guidelines. 71 F.3d at 1450. The Ninth Circuit analyzed the Department of Commerce's internal agency guidelines and concluded that the language of the instructions was mandatory. Id. at 1452. The guidelines, governing the hydrographers' preparation of nautical charts, specified maximum measurements for hydrographers to follow while testing ocean characteristics for the charts. Id. The court held that the hydrographers did not have discretion to go outside those maximum measurements; therefore their actions were not shielded by the discretionary function exception. Id.

In contrast to In Re Glacier Bay, the Ninth Circuit determined in Miller v. United States, 163 F.3d 591 (9th Cir. 1998), that policies prescribing requirements for fire suppression did not eliminate discretion because they did not tell firefighters how to fight the specific fire at issue. The disputed issue in Miller was how firefighters should have allocated suppression resources. Id. at 595. The plaintiffs alleged that Government firefighters negligently failed to commit resources to one particular fire during a multiple fire situation. Id. at 592. The court held:

[W]hile the [applicable] . . . standards and procedures outline certain requirements for fire suppression, they do not eliminate discretion because they do not tell firefighters how to fight the fire. As the district court phrased it, they did not tell the Forest Service to suppress the fire in a specific manner and within a specific period of time. The existence of some mandatory language does not eliminate discretion when the broader goals sought to be achieved necessarily involved an element of discretion.

Id. at 595.

Here, like in Miller, the various Government orders and directives related to firefighter safety enumerated by Plaintiffs do not give firefighters specific protocols for determining exactly when a backfire is appropriate. Plaintiffs have not shown that specific Government policies require a certain level of authority to light a backfire. Plaintiffs have also failed to show that the Government required firefighters to obtain approval before firefighters lit the Spade fire backfires.

On the contrary, the vague principles of the Ten Fire Orders and other directives show that hard and fast rules are not appropriate to all fires under all circumstances. Because fires are unpredictable, and because lighting a backfire can be a lifesaving emergency measure, the Government's orders and directives do not specifically direct, for example, at what wind speed a backfire is prohibited. One firefighter, Safety Officer Beardsley, cancelled a backfire on August 5 because the "wind is blowing . . . too much for a burnout." Because one firefighter decided a burnout was too risky on one day at one location does not mean that the next firefighter, assessing different, or even identical circumstances, would possess any less discretion in making his or her own judgment. The point is not the sagacity of the firefighter, but rather "the nature of the conduct." Varig Airlines, 467 U.S. at 813.

Plaintiffs claim that Government firefighters had no discretion to deviate from Government policies on safety, such as those in the Ten Firefighting Orders and the Eighteen Watchout Situations. Plaintiffs are correct, these policies contained mandates. But each mandatory directive provides discretion to the firefighter. For example, Standing Fire Order Number Seven holds that a firefighter must "determine safety zones and escape routes." But the firefighter must use discretion to decide what constitutes an adequate safety zone based on the surrounding fuels, topography, weather, fire behavior, availability of other firefighting resources, time available to prepare the site and other factors involved in fire fighting discretion. An adequate safety zone may vary greatly in size depending on these and other factors. The Orders tend toward vagueness. Standing Fire Order Number Ten instructs firefighters to "Stay alert, keep calm, think clearly, act decisively." This is the language of discretion, not of specific mandatory actions or protocols.

The non-specific language of the Government's policies and directives, such as the Standing Orders and Watchout Situations, supports the Government's position. These are flexible principles to be used in fighting fire, an activity that depends on firefighters' judgment, common sense, and experience. The Miller Court's holding is applicable here: "The existence of some mandatory language does not eliminate discretion when the broader goals sought to be achieved necessarily involved an element of discretion." Miller, 163 F.3d at 595.

Plaintiffs do not identify any statute, regulation, or policy that prohibited a firing operation in the situation firefighters faced on August 6, 2000. Lighting a backfire can be dangerous to firefighter and public safety; the nature of the firefighter's discretion is to weigh the dangers of a backfire against the benefits.

Although the risks associated with lighting a backfire increase as wind speed increases and as ambient humidity and fuel moisture decrease, Government policies set no express limits when such environmental factors would preclude a firefighter from igniting a backfire. A firefighter must also evaluate the risks of not lighting a backfire, which may vary from nil to extreme. As the risks of not lighting a backfire increase, a firefighter's discretion to make the decision to backfire must also increase.

Because a firefighter must weigh competing risks, his or her act of lighting a backfire falls squarely under the first prong of the Berkovitz test. The act of lighting a backfire under the circumstances of August 6, 2000 involved "an element of judgment or choice." Berkovitz, 486 U.S. at 536; United States v. Gaubert, 499 U.S. 315, 322 (1991).

On August 6, 2000, firefighters faced extreme fire and atmospheric conditions. The firefighting resources were stretched thin. Firefighters in the Bitterroot Valley that day faced a number of large, running fires threatening people and structures. Under these conditions, firefighters had to make difficult decisions. Their acts were "discretionary in nature." Gaubert, 499 U.S. at 322.

A firefighter's discretion to light a backfire is not unlimited. But, the firefighters on the Spade Fire were exercising their discretion on August 6, 2000.


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