The Montana Supreme Court unanimously upheld a $730,000 judgment against the state for unnecessarily burning over a Drummond ranch family’s land in 2000.
Fred, Joan and Vicki Weaver sued the Montana Department of Natural Resources and Conservation after firefighters set burnout operations in the Ryan Gulch fire that scorched about 900 acres of their forest and pasture land near Bearmouth Canyon.
A Granite County jury ruled in their favor in 2012 after an eight-day trial, and the state appealed.
The Ryan Gulch fire burned more than 17,000 acres in the hills above the Clark Fork River along Interstate 90. The Weavers claimed they had successfully contained it with bulldozer lines when a team of state-led firefighters from Florida started “back-burn” operations three miles away. They claimed “the state negligently started the back-burn fire in high wind conditions without adequate means of control and/or suppression,” the appeal noted.
The Weavers’ attorney, Quentin Rhoades, called the decision legally conservative.
“There’s no change in the law,” Rhoades said. “I know firefighters are afraid that ‘if we goof up, we’re held liable.’ But think about it from the landowners’ perspective. ‘If the firefighter goofs up, we have to eat it.’ There’s always tension between the two sides, and what it boils down to is the behavior in the individual case.”
The state tried to claim it was immune from lawsuits under the public duty doctrine, which states: “When a governmental entity owes a duty to the general public, that duty is not owed to any specific individual.”
But Granite County District Judge Ray Dayton ruled that state lawyers brought up the defense too late in the trial. The Supreme Court justices agreed.
“We do not decide in this case whether or not the public duty doctrine … could apply to claims arising from government efforts to suppress wildfires,” Justice Beth Baker wrote. “We hold only that the district court did not abuse its discretion in striking the defense under the circumstances presented here.”
State Forester Bob Harrington said he feared the decision could limit firefighters’ ability to use fire as a tool to build or reinforce defensive lines. Such burn-out operations were a regular part of the protection of U.S. Highway 12 homes during the Lolo Creek Complex fire, for example.
“For starters, we’re not going to be changing our operations in terms of fire management strategies,” Harrington said on Wednesday. “We’re going to continue to use all the tools in the toolbox, including burn-outs, in coordination with line officers and affected landowners.”
Harrington added the case had been in legal limbo for a decade, while many firefighting protocols had improved. In particular, fire supervisors were more diligent about keeping records of their decisions and actions each day.
Rhoades said that was a crucial factor for jurors in 2012.
“We had to prove there was something done wrong here, when the presumption was that everything was done right,” Rhoades said. “The jurors I spoke with were very troubled that records had disappeared or been altered. There were big mistakes about where the fire was located – strategic mistakes regarding where it was and which drainage was which. They were off by two miles where they thought that fire was. That’s just hard to forgive.”
The Supreme Court similarly threw out the state’s claims that it couldn’t get an impartial jury in Granite County and that the case didn’t use expert testimony properly. The justices noted in both arguments, the state lawyers agreed to the situation before Judge Dayton, and couldn’t complain about it afterward.
However, the justices turned down the Weavers’ claim that Montana officials unfairly withheld or changed evidence before and during the trial.
The District Court opinion noted that some video of the fire should have been revealed sooner and some photos had the dates changed. But the justices agreed the Weavers “had not shown that the state had concealed, destroyed or altered any documents.” And since they won the case, the justices agreed there wasn’t need for further sanctions.
Justice Baker was joined by justices Mike McGrath, Patricia Cotter, Laurie McKinnon and Brian Morris in the decision.