Appeals Court Sides with Forest Service in 2000 Backfires

April 25, 2008

U.S. Forest Service firefighters have the discretion to determine the best way to fight fires and cannot be sued for negligence for setting a backfire in the Bitterroot Valley of Montana in 2000 to try to stop an advancing blaze, an appeals court has ruled.

More than 100 Bitterroot Valley residents filed a lawsuit against the Forest Service in December 2003, contending the fire was negligently set by fire crews and ended up burning dozens of homes.

Homeowners and insurance companies argued firefighters violated their own policies when they lit the Aug. 6, 2000, backfire and should have known there was a strong chance it would endanger lives and property.

The lawsuit said the backburn was not authorized, was set without warning area residents and was “highly imprudent” because of weather conditions — temperatures were above 90 degrees, the wind was blowing at 25 mph, and the humidity was low.

The lawsuit said homeowners suffered $54 million in damages.

U.S. District Judge Donald Molloy ruled that the firefighters could not be sued because the federal Tort Claims Act grants immunity to federal employees who exercise discretion within the scope of their employment.

A three-judge panel of the 9th U.S. Circuit Court of Appeals upheld Molloy’s decision last week.

“The Forest Service’s decision to set backfires was a policy judgment in that it ‘involved a balancing of considerations, including cost, public safety, firefighter safety and resource damage,”‘ the panel’s decision said. Employees making such policy judgments are exempt from being sued under the federal Tort Claims Act, the panel said.

An attorney for the property owners did not return a phone call seeking comment.

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