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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

IV. Factual and Procedural Background

On July 27, 2000, Governor Marc Racicot declared a state of emergency in Montana because of imminent threats of wildfires. On July 31, lightning started wildland fires in the Bitterroot Valley and the Bitterroot National Forest.

The fires burning in the south end of the Bitterroot Valley were administratively divided into two "complexes": the Sula Complex, west of Highway 93, and the Valley Complex, east of Highway 93. Two Type I Incident Management Teams (IMTs) assumed responsibility for the fires. Steve Frye was Incident Commander of the Valley Complex IMT and Joe Stam was Incident Commander of the Sula Complex IMT. The Sula Complex included the Spade Fire, burning south of Conner, Montana. On the Spade Fire, the chain of command under Joe Stam was as follows: Daily operations were directed by Operations Chief Lynn Wilcock; Branch Director Chip Houde was next in command; Division Supervisor David Whitmer answered to Houde. Bill Beardsley was the Spade Division's Safety Officer.

On August 5, the Stam team discussed plans to prevent the Spade fire from spreading to populated areas. They worried that if the fire reached gentler topography to the northeast, it could move faster and either run north towards Conner, or burn the structures along the East Fork/Highway 93 corridor and jump the highway. If the fire jumped Highway 93, it could trap crews working the Valley Complex fires on the east side of Highway 93.

To control easterly spread, Whitmer supervised a north-south 'dozer line parallel to the fire's eastern flank. Whitmer, Beardsley, Wilcock, and another Safety Chief discussed the possibility of burning out between the north-south line and the fire, but they were concerned about adequate escape routes for firefighters. Whitmer and Houde also discussed a "contingency" plan in the event that the Spade fire started running east or northeast, such as building an east-west line from the East Fork to the West Fork. This contingency line could be used to anchor a backfire to keep the Spade fire from jumping Highway 93 or spreading to the north.

On August 6, 2000, an inversion lifted and the Bitterroot fires accelerated. According to Steve Frye, "there was extraordinary fire activity occurring throughout the Bitterroot Valley [with] [f]ires making rapid runs, extreme spotting distances . . . spreading in all directions." The Maynard Fire, another fire in the Sula Complex, jumped Highway 93 and burned over a Valley Complex fire camp; firefighters and support personnel escaped injury by sheltering in busses.

That day the Spade Fire began to heat up and Houde and Whitmer pulled crews to safer, defensible positions. The incomplete north-south 'dozer line, intended to control the east flank of the fire, was abandoned because of the increasingly violent fire behavior, and the fire burned across the line into the Spade Creek watershed. The prevailing winds tended to be out of the northwest. Along its western edge, the Spade fire backed downhill toward a hand-line above the West Fork, and crews under orders from Whitmer successfully backburned between that line and the main fire. As fire behavior worsened in the late afternoon, Whitmer consulted with Houde and began firing operations on the east-west contingency line. Whitmer believed that the main fire had already entered the Dickson Creek watershed when he began his firing operations.

Plaintiffs claim that Whitmer's backfire - not the main Spade Fire - destroyed their property. Plaintiffs also claim that the Government lit other backfires to which it has not admitted. The Government claims that (1) by the time firefighters decided to backfire from the east-west line, the Spade Fire had already reached the main Dickson Creek drainage, and the Spade Fire burned the Plaintiffs' properties, not any backfire; and (2) the backfires of August 6, 2000 were a success because the Spade fire did not jump Highway 93 that day.

Plaintiffs filed suit on December 2, 2003, claiming negligence, nuisance, trespass, and "negligence in investigating agency misconduct." The Government moved for summary judgment on May 31, 2005, arguing that Plaintiffs' suit is barred by the discretionary function exception to the Federal Tort Claims Act.


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