Point Fire, 1995
&
Island Fork Fire, 1999
dedication

Point Fire Case Study

• Instructor Guide
• Student Handout

Point Fire Accident Investigation

A. Point Fire Overview

• Overview
• Red Flag Warning
• Rescue Attempts

B. Investigation

• Investigation Process
• Findings
• Causal Factors
• Entrapment Investigation Element Matrix and Entrapment Investigation
• Ten Standard Orders, 18 Situations that Shout "Watch Out"

C. Recommendations

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

F. Glossary

      ——————

Island Fork Fire Accident Investigation

• Cover & Dedication
• Executive Summary
• Maps & Introduction
• Sequence of Events
• Findings
• Causal Factors
• Recommendations
• Appendices

  ——————

Island Fork Fire, NIOSH Report

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
 • Findings of Fact
 • Legal Standards
 • Analysis

Ruling on Public Safety Officer Benefits (PSOB)

      ——————

Surviving Fire Entrapments

      ——————

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,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.

Civil Case No. 96-0324-S-BLW
(Consolidated with)
Civil Case No. 96-0452-S-BLW
Civil Case No. 97-0129-S-BLW

Legal Analysis

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 U.S.C.§ 2680(a).

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. at 324.

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' overall claims.

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.

Conclusion

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.

Order

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