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.”

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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.

Reporter Rob Chaney can be reached at 523-5382 or at rchaney@missoulian.com.

(12) comments

listen
listen

Here we go again. Comments from a bunch of Monday morning quarterbacks who didn't even attend the game. Guess who the attorneys were who represented the state? Garlington, Lohn & Robinson. Spare no $$$$$$$ when the taxpayer picks up the tab, lose or win. Rhodes was good in court, almost one the best I've seen. Did he earn his cut? Did Garlington, Lohn & Roberson? Did the Weavers get back the land they lost? The time? Stress? And and real amount of $$$$$$ lost caused by this botch up? BTW they do pay extra (per acre) for fire protection in their property tax. And the property was NOT of marginal use. No land is, except the majority owned by the government which is either poorly managed, over restricted, regulated and/or locked up from public use. From where I sat during the entire trial, it was another case of government botch up by arrogant government supervisors who added insult to injury by trying to cover up and destroy evidence of their botch up. Sounds familiar? As far as the attorneys? It's just another example of the cost of justice. Those who can't afford the price of justice,
usually get screwed either by no representation (pro se which the courts hate) or by the sloppy, unqualified plea bargaining state attorneys. And the court? The judge? He's a brother of the Bar and employee of the state/government. He usually swears to the lies of other two.

johnny Dollar
johnny Dollar

okay.... I did "Listen"......but your comments do not lead to any comprehensible conclusion. There certainly appears to have been neglect by fire officials, and it does not make any sense that the state challenged the lawsuit. Yet they did, and I think they should get minimal pay for being "Losers."

whether it is homes on Blue mountain, a ranch on the Clark Fork or a uninsured estate in the flood zone.......it is absurd that public funds go to defend these owners .......from their own bad judgement. This practice is nationwide and universally absurd.

I don't want to buy "Crop" insurance either........nor do I want to pay Pork Chop Jon Tester subsidies so his farm can survive.

johnny Dollar
johnny Dollar

Here we have a great example of why the public (TAXPAYERS) should NOT defend rural private lands from fire.

This ranch was of marginal use......very little grass and the soil appears to be worthless. Yet now that it was burned, it is prime grade A dirt from Green Acres.

Let it burn!

This ranch may not have burned at all.......but plenty of other private properties have. Obviously these land owners do not pay for fire suppression, as they could never afford the true cost.

So....why is the burden placed on my back?

Bad policy.......bad judgment.......and no, I do not want to pay Jim Bob there in the picture. Next time a fire come his way, he can use that $735k to put it out.

lakeguy406
lakeguy406

About time to take suit against the DNRC Trust Land Management Division for misappropriation of School Trust Fund monies as well. Good work Quentin Rhoades !

Roger
Roger

I wonder if it was the Florida crew that made the maps that were off by two miles. Time to rein in that bunch, since they evidently started the destructive backburn.

Smilely
Smilely

Yahoo, finally some judicial/legislative overview of how wildfires are fought. Now it is time for a more modern overhaul of the entire primitive methodologies presently used to fight wildland fires and deconstruct the huge unnecessary industrial complex surrounding the simple task of putting out a forest fire.

Objective observer
Objective observer

Oh yes. It is so simple to put out a forest fire. When fuels have very low moisture contents, the wind is blowing 40 miles an hour and it is hot. Yeah, so simple.

Sukey
Sukey

This is a tough call because ultimately the taxpayers pay for this judgement against a federal agency. They ruined the Weavers ranch with their backfire and that's heart breaking. The real question is just like people arriving at an accident scene. Will people now be afraid to volunteer to fight a fire because this win opens the door to being sued, just like people trying to help at an accident are liable to be sued. Lawyer Rhoades appeared to prevail on behalf of the Plaintiffs because the State was negligent in their defense, not raising the appropriate statute within the time allowed. But, Lawyer Rhoades is good at suing the government and winning, he has an impressive record and we, the little people, appreciate his David vs Goliath contests.

Alan Johnson
Alan Johnson

DNR is a state agency. The federal government was not sued. The State of Montana was.

old AZ hippie
old AZ hippie

Sukey, I understand what you're saying (except that I believe it was the State of Montana that was sued, not the federal government). Unless there's some kind of insurance against such claims, the taxpayers ultimately pay the award. However, it's the job of the Dept of Natural Resources to know how to fight the fires, and the job of the fire fighters who get paid to do this. We should all be help responsible for doing our job correctly. Of course, having said that, this is not any ordinary job. And it certainly isn't easy. I still think the courts ruled correctly.

jackmehandy79
jackmehandy79

Your statements, while understandable, are legally incorrect. You will note that the DNRC was the entity that was sued, not the individual firefighters. This ruling does not pave the way for individual liability on each firefighter for their actions. Furthermore, your statement that "people trying to help at an accident are liability to be sued," is legally inaccurate. I would advise you to look at Montana Code Annotated Section 27-1-714. That statute states "Limits on liability for emergency care rendered at scene of accident or emergency. (1) Any person licensed as a physician and surgeon under the laws of the state of Montana, any volunteer firefighter or officer of any nonprofit volunteer fire company, or any other person who in good faith renders emergency care or assistance without compensation . . . at the scene of an emergency or accident is not liable for any civil damages for acts or omissions other than damages occasioned by gross negligence or by willful or wanton acts or omissions by the person in rendering the emergency care or assistance." As you can see, those rendering emergency aid at the scene of an accident are only responsible for their gross negligence or willful and wanton conduct, not ordinary negligence, which is a much more difficult standard to meet.

Sukey
Sukey

Jackmehandy79, the touchy part is PROVING you were not guilty of "gross negligence or willful and wanton conduct". Problem is, even if you can defend your actions, you can still get sued. And, even if you prevailed in proving it you're out your legal fees. Its a litigious society and a lot of potential people who are in the right place to help are hesitant to do so. We little people don't look up Montana Code Annotated when our day is ripped apart by someone else having a dire emergency such as a car accident. Why did I mention this? Because I was the first person at the scene of a motorcycle accident and I was the only one willing to help a guy who looked like he was going to bleed out. Even the cop stood there like he didn't want to get his uniform soiled. It was a scary 20 minutes until an ambulance arrived. Perhaps they were scared to help because they didn't know what to do. I think they were scared because they forgot to look up the Montana Annotated Code on their IPad to ensure they wouldn't be sued if they did the wrong thing while trying to do the right thing. So, your comment is useful, and please write a letter to the editor to inform those of us who are not lawyers of our protection under the law, it is a good law, and I doubt that very many people-the general public- are aware of it.

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