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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)

E. Plaintiffs’ allegations that the Government conducted other, unacknowledged firing operations do not create a genuine issue of material fact.

Having found that the Government's admitted firing operations (Schmidt's, Whitmer's, and Hvizdak's) satisfy both prongs of the Berkovitz discretionary function test, it is necessary to address Plaintiffs' claim that Government employees initiated three un-admitted firing operations. Plaintiffs support their allegations with citations to videotape and deposition testimony by lay persons and Plaintiffs' expert, Dr. Omi.

The fact that three acknowledged firing operations are shielded by the discretionary function exception does not mean that all the Government's firefighting actions are necessarily shielded. "The proper question to ask is not whether the Government as a whole had discretion at any point but whether its allegedly negligent agents did in each instance. Each 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 at 1451.

Plaintiffs produced substantial proof of only one of the three alleged unacknowledged firing operations: an alleged backfire conducted by Chip Houde. Compared to seven pages describing the alleged Houde firing operation, Plaintiffs expend one sentence each to describe the other two alleged unacknowledged backfires. P1. Backfire's Statement of Genuine Issues, at 2-8.

Even taking Houde's alleged firing operation as fact, there is no genuine issue that would preclude summary judgment. Assuming arguendo that Houde lit a backfire and then lied about it, Houde still confronted the same fire conditions on August 6, and had to balance the same risks and benefits discussed in relation to the Government's acknowledged firing operations. Supervisor Whitmer had the discretion to light a backfire, Houde, above Whitmer in the chain of command, had equal or greater discretion. Applying both prongs of the Berkovitz analysis, Houde's actions are also shielded by the discretionary function exception. Because Houde's decisions and actions are shielded by the discretionary function exception, Plaintiffs' documentary evidence of his alleged backfire and the alleged subsequent Government coverup are irrelevant to the outcome of Plaintiffs' legal claim.

Plaintiffs allege that the "second" firing operation was ignited by an unidentified Government firefighter along the West Fork "proximate to the Castle House." P1. Backfire's Statement of Genuine Issues, at 8. As is the case with Schmidt's undisputed backfire along the West Fork, the main body of the Spade fire intervened between the second backfire and Plaintiffs' properties. Thus, the second firing operation, taken as fact, would not have affected Plaintiffs' properties and does not alter the disposition of the case. See Anderson, 477 U.S. at 249-50.

Plaintiffs also allege that an unidentified Government firefighter conducted a "third" firing operation "near the Landing Strip." P1. Backfire's Statement of Genuine Issues, at 8. This alleged firing operation would have taken place west of Whitmer's backfire and, compared to Whitmer's, would have been much less likely to have affected Plaintiffs' properties. This allegation is also not significantly probative to defeat summary judgment.

Finally, the bulk of Plaintiffs' proof goes to the claim that Whitmer's acknowledged backfire destroyed their properties. Even if Plaintiffs are correct about Whitmer's backfire, they cannot escape summary judgment by presenting merely colorable allegations of other unacknowledged backfires. Whitmer's actions are shielded by the discretionary function exception.

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