Property Owners Suing Forest Service Over 2010 Wildfire

Three families whose property inadvertently burned when a prescribed fire by the Helena National Forest raced out of control in 2010 are suing the federal government, saying they should be compensated for the "negligent and wrongful acts and omissions" of Forest Service employees.

Plaintiffs Darrell and Linda Holmquist, Randy and Brandon Henry and Kent Taylor filed the lawsuit in U.S. District Court in Helena this week. They allege that when the Forest Service ignited the Davis prescribed fire southeast of Lincoln on Aug. 25, 2010, it grew out of control, causing the "total destruction" of their property, which surrounded the fire area. They also allege that the Forest Service failed to use reasonable judgment by not notifying nearby landowners or local firefighters about their plans to ignite the fire.

"The Davis Fire took place under extreme weather conditions consisting of gusty winds and very warm temperatures. In fact, the prescribed fire was set during a fire weather warning," John Heenan, the attorney for the families, wrote in the lawsuit. "The Forest Service failed to follow its own guidelines for proper prescribed fire implementation in starting the Davis Fire.

"... Had the Forest Service notified Plaintiffs, they would have been able to take measures to protect their properties and/or ensured that the Forest Service took measures to do so."

The Holmquists own 59 acres near the fire, which burned in the Stemple Pass area. The Henrys own 95 acres, and Taylor owns 142 acres.

They noted that under Montana law, had the Forest Service been a private citizen, it would be liable for damages caused by setting or leaving a fire that spreads and harms someone else's property.

Kathy Bushnell, Helena National Forest spokewoman, declined to comment on the lawsuit since she hadn't seen a copy of it.

The wildfire originated as part of a prescribed fire plan, initiated in February 2009, which was reviewed and approved in July 2009 and again in March 2010 by Lincoln District Ranger Amber Kamps; the plan wasn't revisited again before the Aug. 25 ignition date. The main purpose for what was to be a 537-acre prescribed fire was to restore stands of white bark pine and to limit the encroachment of trees into a mountaintop meadow near Granite Butte, as well as to remove trees killed by the mountain pine beetle epidemic.

The prescription called for notifying media and nearby residents of the burn by going door to door, but Helena National Forest Supervisor Kevin Riordan said, after an inquiry into the fire, that the strategy doesn't work well when people are away at work. Instead, the Helena forest plans to possibly use the reverse 911 emergency calling feature to notify neighbors when they considering prescribed burns in the future, Bushnell said.

The prescription also noted that the potential for the fire to burn out of control was low, and while models predicted flame lengths of 24 feet and a rate of spread of about 7 mph, forest officials wrote that from past experience, they expected flame lengths and the rate of spreading to be about half that.

Fire crews started about a 200-acre portion of the prescribed fire in the spring of 2010, which went well. Then, on Aug. 24, Kamps conferred with fire management officers. Even though open burning was banned in Lewis and Clark County and the forecast called for near record-high temperatures and gusty winds on Aug. 26 -- which led to a red-flag warning -- she believed the cool, wet summer would allow them to do the prescribed burn on Aug. 25.

An inquiry into the fire by a five-member panel noted that initially it was difficult to start the prescribed fire, but the plan went as scheduled from 10:45 a.m. until about 2 p.m., when the winds shifted and grew stronger. Blowing embers started spot fires outside the prescribed burn's perimeter, with 20 acres burning before the spot fire was brought under control at about 4 p.m.

Despite the fact that the fire was not "dead out" -- a phrase used by the U.S. Forest Service when directing campers to not leave a campfire unattended -- the crews left the fire by 10 p.m., planning to come back with additional personnel and equipment the next day. The report by the panel noted that fire activity had diminished and the most active area was only smoldering in dead and downed woody materials.

Crews returned with increased resources on Aug. 26. But when the anticipated high winds and high temperatures combined early that afternoon, the fire quickly transitioned from a ground fire to a crown fire and raced out of control for three days. It eventually burned across 2,000 acres and cost $3 million to extinguish.

The panel's report said no single event caused the fire to get out of control. Instead, they said the Forest Service underestimated the potential fire behavior within the prescribed fire area; that the expected fire behavior outside the area was under-represented in the fire plan; and that they didn't consider the increased number of dead trees between the time the plan was formulated in February 2009 and the burn itself.

No one was reprimanded in connection with the fire. The three families are seeking unspecified damages and a jury trial.

McClatchy-Tribune News Service