Supreme Court upholds $730K judgment in burnout

MISSOULA (AP) — The Montana Supreme Court has upheld a $730,000 judgment against the state after a burnout meant to eliminate fuel available to a fire near Drummond in 2000 charred privately owned ranchland.

Fred, Joan and Vicki Weaver sued the Montana Department of Natural Resources and Conservation after a team of state-led firefighters from Florida set backfires on the 17,000 acre Ryan Gulch Fire, causing 900 acres of their ranch and timber land to burn.

The lawsuit argued the state "negligently started the back-burn fire in high wind conditions without adequate means of control and/or suppression."

The Weavers argued they and other ranchers had successfully contained the fire with bulldozer lines when firefighters started burnout operations 3 miles away.

Quentin Rhoades, the Weavers' attorney, argued that the firefighters acted contrary to their own rules and procedures and the Florida team used tactics that might work there, but were inappropriate for Montana's dry mountains.

A jury in Granite County ruled in the Weavers' favor last year and the Supreme Court upheld the verdict in an opinion filed Tuesday, the Missoulian (http://bit.ly/1aSlupS) reported.

The state unsuccessfully appealed a ruling by District Judge Ray Dayton, who rejected the state's plan to argue it was immune from being sued due to the public duty doctrine. Dayton said the state brought up the defense strategy too late in the trial process, giving the Weavers inadequate time to prepare a response.

The Supreme Court upheld that decision.

"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 in the unanimous opinion. "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 was worried the decision could limit firefighters' ability to use fire as a tool to build or reinforce fire lines.

"For starters, we're not going to be changing our operations in terms of fire management strategies," Harrington told the Missoulian 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."

Rhoades said the decision does not change the public duty doctrine, under which public officials cannot be held liable for a private party's injury when the official is acting to protect the public.

"I know firefighters are afraid that 'if we goof up, we're held liable,'" Rhoades said. "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."

In the Weaver case, Rhoades said jurors told him they were concerned that records on firefighter actions were missing or altered and there were mistakes in where the fire was located.

Harrington said many firefighter protocols have improved, including fire supervisors being more diligent about keeping records of their decisions and actions each day.