United States District Court, D. Montana, Helena Division
OPINION & ORDER
CHARLES C. LOVELL, District Judge.
This case arises from a Forest Service prescribed burn on a 500-acre plot of land (the "Davis 5 Unit") on the Helena National Forest, Lincoln Ranger District, that escaped and became a 2, 000 acre wildfire, burning undeveloped timber land belonging to the Plaintiffs near Lincoln, Montana. Plaintiff asserts a claim under the Federal Tort Claims Act for negligence. Now before the Court are the parties' cross-motions for summary judgment. The United States filed a Motion for Summary Judgment on Discretionary Function and Strict Liability (Doc. 37). It is the government's position that Plaintiff's suit is barred by the discretionary function exception to the Federal Tort Claims Act and that, further, there is no waiver of sovereign immunity to pursue the United States on strict liability claims. In response, the Plaintiffs filed a Motion for Summary Judgment as to the Government's Affirmative Defense of Discretionary Function (Doc. 24), and a Partial Motion for Summary Judgment as to Liability (Doc. 26). The motions came on for hearing on September 26, 2014. Plaintiffs were represented by John Heenan, and the United States was represented by AUSA Victoria Francis and AUSA Timothy Cavan. The Court, having heard the arguments of the parties and having reviewed the briefs, affidavits, declarations, and all the record, is prepared to rule.
While the cross-summary judgment motions were pending, four of five Plaintiffs moved to dismiss their claims against the United States. Plaintiff Kent Taylor is thus the only remaining plaintiff.
Before explaining in detail the facts associated with this case, the Court will sweep away a few erroneous allegations. First, the prescribed burn was not ignited under a "red flag warning." Second, although Lewis and Clark County did have a "no burn" prohibition in effect on the relevant date, that prohibition was irrelevant to the prescribed burn both because it had no legal effect on Forest Service land and also because the "no burn" prohibition was particularly directed to the dry conditions found generally throughout the county, and especially on the valley floors. The county's "no burn" prohibition was not applicable to the Davis 5 Unit because the land was at 7, 000 foot elevation and was much wetter than the rest of the county. With two inches of rain in August on this unit of Forest Service land, there were fall-like conditions in the area of the prescribed burn. Third, the Forest Service did make substantial efforts in advance to notify property owners and public officials in the area of the prescribed burn by notifying Montana Department of Natural Resources, several local fire departments, the county sheriff's office, several public officials, and seasonal cabin owners by door-todoor notification. Fourth, this prescribed burn turned wildfire is not, and never has been, a case of clear liability. Lastly, this escaped fire was a rare event: of the 4500 prescribed burns per year conducted by the Forest Service, approximately 9 escapes occurred per year during the period 2008-2012. That said, the Court continues on to describe the detailed facts of the case.
In 1998, after an Environmental Impact Statement was completed, then-Forest Supervisor for the Helena National Forest, Thomas Clifford, issued his Record of Decision on the Poorman Project. (Exhibit C, Doc. 44-3.) The Poorman Creek area is located approximately 11 miles southeast of Lincoln, Montana and is part of the Lincoln Ranger District. This area of forest was found to be at risk of epidemic mortality due to insects and due to the potential for largescale fires, resulting in part from decades of fire suppression. The Forest Supervisor concluded that the conditions of elevated fuels in the Poorman Project area could not be sustained. The Poorman Project Decision implemented management practices of various types (prescribed burn, precommercial thinning, commercial thinning, regeneration harvest, regeneration burn) for the purpose of maintaining grasslands, promoting sustainable forest ecosystems, and lowering fire risk by reducing fuels.
One of the prescribed burns planned as part of the Poorman Project was the Davis 5 Unit Prescribed Burn in the Lincoln Ranger District. This portion of the project was difficult to schedule due to its high elevation, resulting in snow lasting long into the spring and rain in the fall. (Dec. Romero, Doc. 42-1 at 12.) The Davis 5 Burn Plan (the "Burn Plan") was prepared in July, 2009, and updated in March, 2010, to prepare for a prescribed burn of approximately 500 acres at high elevation (6200 feet to 7430 feet elevation). (Exhibit D, Doc. 44-4.) The goal of the burn was to promote the health of grasses and White Bark Pine trees and to reduce the presence of ladder fuels such as conifers that could cause future crown fires. The Burn Plan is an extensive, 120-plus page document, including appendices, that identifies and discusses the twenty-one topics that must be addressed in a U.S. Forest Service Prescribed Burn Plan as prescribed by the "Interagency Prescribed Fire Planning and Implementation Procedures Guide." (Exhibit E, Doc. 44-5.). The complexity of the prescribed burn was determined to be moderate. The consequences of and the risk that the prescribed burn could escape its boundaries and enter private lands one-half mile from the project area (the private lands owned by Plaintiffs in this case) was explicitly considered by the Burn Plan, and the risk of escape to private lands was deemed to be low due to prevailing winds and an analysis based on computer modeling. (Doc. 44-4 at 26.) The expected time of year for the prescribed burn was spring or fall, although any time of year that provided the appropriate prescription parameters could be utilized (McBratney Decl., Doc. 44 at ¶25.). Several prior spring and fall seasons had proved to be too wet to permit the prescribed burn. In August of 2010, however, unusually rainy weather in June and early August had provided extra moisture to the project area, so at mid-month the Burn Plan was reviewed for possible execution.
Beau Macy and Jarel Kurtz were the Prescribed Fire Burn Bosses who prepared the Prescribed Fire Plan. They are both qualified for a Type 2 prescribed fire. The Lincoln Ranger District Fire Management Officer, Jay Lindgren (who is qualified as a Type 1 Burn Boss), served as the Technical Reviewer of the Burn Plan. (Decl. B. McBratney, Doc. 44 at 10.) Lindgren also served as the Burn Boss for the Davis 5 Prescribed Burn.
On August 24, 2010, the Fire Management Officer for both the Helena and Lewis and Clark Forests, Bradley McBratney, met with Lindgren to review the proposed Davis 5 Prescribed Burn and the weather forecast. McBratney had been involved with 75 prescribed fires in the past. (Doc. 44, ¶ 1.) Lindgren had been involved with about 100 prescribed fires in the past. (Doc. 41, ¶ 1.) Together, McBratney and Lindgren obtained a spot weather forecast from the National Weather Service (Great Falls, Montana) and also telephoned a meteorologist there to discuss the forecast beyond Thursday. (Doc. 44 at ¶¶ 14-15, Doc. 41 ¶ 11.) The anticipated weather for the next day, Wednesday, August 25, was within prescription, meaning that it met the temperature, wind, and humidity parameters of the Burn Plan. (Doc. 44 at ¶ 22.) Because of the size of the area, McBratney considered this to be a moderate risk burn. (Doc. 44 at ¶ 16.) The method of ignition (by hand), the lack of nearby residences or major power lines, the lack of complex fuel types, and the ample staffing and resources available all pointed to a burn of moderate complexity only. Lindgren planned to have available 6 fire engines with water, two folding water tanks (6, 000 gallons and 1, 500 gallons), and a pump to help contain the burn within the unit boundaries. Lindgren also had 36 people involved in the ignition (available also for fire suppression as needed) and additional employees on the engines and water tanks. (Doc. 41, ¶ 13, ¶ 18.) There had been no fires in the Lincoln Ranger District at this point in time. (Doc. 41-2 at 3.) McBratney made the decision "[b]ased on [his] general knowledge as to whether the Helena National Forest was in 2010 with the extra moisture this was a good opportunity to meet the planned management of the area and an appropriate risk to take." (Doc. 44 at ¶ 24.) Both McBratney and Lindgren knew that a cold front and weather watch were predicted for Thursday afternoon, but they believed that the prescribed burn could and would be executed and mopped on Wednesday afternoon, and that the predicted rainfall that would follow the cold front over the weekend would ensure that the burn was put out. (Decl. Lindgren, ¶ 11.)
District Ranger Amber Kamps, who had approved the actual Burn Plan on July 15, 2009, and again on March 3, 2010, met with Lindgren and reviewed the Burn Plan and the weather for Wednesday and Thursday, August 25-26, 2010. District Ranger Kamps approved the Prescribed Fire Plan, Doc. 44-4 at 19, including the Go/No Go document for the Plan. (Kamps Depo. at 4-5, 17 (conventionally filed).) In turn, District Ranger Kamps telephoned the Acting Supervisor for the Helena National Forest, Nancy Peak, discussing the Burn Plan, the staffing, and weather issues. (Doc. 40, ¶ 3.) Acting Supervisor Peak knew that the Poorman Project NEPA land management plan prescribed this fire treatment and that Ranger Kamps was authorized to prescribe fire in the Lincoln Ranger District. (Doc. 40, ¶ 4.) Acting Supervisor Peak approved Amber Kamps as the Line Officer for the Davis 5 Burn. (Doc. 40, ¶ 4.) However, the District Ranger had authority to approve this fire and did not require the approval of the Forest Supervisor. (Kamps Demo. at 20-23.) The Prescribed Fire Guide that has been adopted by the Forest Service gives authority for Go/No Go to either a Forest Supervisor or a District Ranger. (McBratney Decl. ¶¶ 11, 32; Ex. E at 11 (Bates 0673); Ex. G at 14 (Bates 0195).)
On Wednesday, August 25, the prescribed burn was attempted at 10:45 a.m. and at 12:00 noon, but humidity was too high for ignition at those times. (Doc. 41, ¶19.) A third attempt at around 1:00 p.m. appeared to be successful, so hand ignition crews commenced work. The prescription parameters for temperature, wind, and humidity were all met at the time of ignition. (Dec. McBratney, Doc. 44, ¶ 27 ("A review of the on-site weather measurements shows that they were within the prescription."). On-site weather measurements were required prior to ignition, at the time of ignition, and every half hour after ignition to make sure that conditions stayed within the Burn Plan prescription. In fact, the conditions continued to stay within prescription even after spotting outside the burn unit caused Lindgren to shut down ignition:
At 1:00 p.m. or 1300 hours temperature was at 70 degrees, relative humidity at 35% and winds from the southwest at 3-5 mph. At 1:30 p.m., 1330 hours, temperature was 72 degrees, relative humidity at 31% and winds from the southwest at 3-5 mph. At 2:00 p.m., 1400 hours, temperature was 74 degrees, relative humidity at 31 percent and winds from the southwest at 3-5 mph.... [A]t 1545 hours [temperature was] at 74 degrees, 29% humidity and wind from the southwest at 5-7 mph; and at 1630 [temperature was] at 75 degrees, 25% relative humidity, winds from the Southwest at 5-7 mph and gusts at 10 mph.
(Doc. 41, ¶ 17.) Unfortunately, between 1:00 p.m. and 2:00 p.m., the direction of the wind began to change from up-slope to cross slope and wind intensity began to increase, with mixing of winds from high elevation. The first spot sighted outside the unit caused ignition to be shut down, and by 2:15 p.m. all crews began fire suppression activities. In the evening, around 10:30 p.m., the crews were taken off the fire because it was not moving and had calmed down (which is common during night time). One engine crew continued to monitor the fire. (Doc. 41 ¶ 20.) The decision not to fight the fire through the night was made by Burn Boss Lindgren for the safety and protection of the firefighters. (Doc. 41 at 13 "there is increased danger of trees falling and snags falling injuring firefighters... as well as crew needing rest for the next day".)
At 8:00 a.m. the next morning, Thursday, August 26, approximately 70 people with additional support from a helicopter crew and 3 more fire engines and 3 water tenders, began working to suppress the fire. At mid-day on Thursday, wind speed increased and the fire became a more active crown fire. The fire was declared a wildfire at approximately 1:00 p.m. on August 26. A Type 2 Incident Management Team was ordered, as well as air tankers, helicopters and other additional resources. By evening, the fire grew to 1, 600 acres on federal land, and it also spread into almost 300 acres of private land owned by the five Plaintiffs in this ...