Montana Supreme Court to rule on burnouts

MISSOULA — The term “burnout” has been in the news a lot this summer.

A Montana Supreme Court decision later this fall could change that, threatening a firefighting tactic credited with saving hundreds of home.

Last month, Hotshot crews on the Lolo Creek Complex Fire burned out areas of green grass, brush and timber between U.S. 12 and the wildfire in the hills north and south of the road — eating up the fuel under controlled conditions, so there would be nothing to turn embers into new spot fires if the wind direction blew back toward people’s homes.

In much the same way, incident commanders at the 200,000-acre Rim Fire near Yosemite National Park used burnouts to protect 4,500 residences and the Hetch Hetchy Reservoir that provides San Francisco’s drinking water.

And 13 years ago, firefighters battling the 17,000-acre Ryan Gulch fire set a series of burnouts in the hills near Clinton.

Some of that intentionally set fire ruined about 900 acres of timber and pasture on the Weaver family ranch.

The Weavers sued the state, arguing that firefighters on the scene were “freelancing” as they used drip torches to light fires that weren’t planned for or properly located.

Last year, a Granite County District Court jury awarded the Weavers $730,000 in damages from the state of Montana.

“There was a lot of interest in the firefighting community when that decision was handed down,” Montana State Forester Bob Harrington said on Friday. “It implies that every time firefighters use burnout or backfire operations, they’re potentially liable for damages or even worse. That’s not something that’s good for firefighting operations.”

Burnouts, sometimes called back-burns, allow firefighters to widen the space between fire lines they cut and the actual fire.

That’s different from “backfires,” which are larger fires intentionally set to pull a wildfire off course or to rob its momentum. Firefighters on the Robert Fire in 2003 in Glacier National Park used a backfire to divert the main flame front away from the towns of West Glacier and Apgar.

Confusion over the terms was a regular factor in the Ryan Gulch lawsuits.

The state has appealed the Granite County decision to the state Supreme Court. It argues it should be immune to such claims because of the “public duty doctrine,” which should protect it when performing public services like firefighting.

“Under Weaver’s arguments, state actors responding to an emergency would be consumed with recordkeeping, with an eye toward future litigation, rather than focusing on the crisis and public safety,” state’s attorney Robert Sheridan told the Supreme Court. “Reducing the courts to an open forum for prospective plaintiffs to second-guess every act or omission of government ... would unduly constrain the discretion critical to employ Montana’s limited resources to promote the general welfare.”

Quentin Rhoades, the Weavers’ attorney, countered that the Ryan Gulch fire trial proved firefighters acted contrary to their own rules and procedures when the Weavers’ land got burned. He added the team on the scene, which was from Florida, used tactics that might work in the flat, wet Southeast but were inappropriate for Montana’s dry mountains.

“This was a situation where local firefighters were using non-firing techniques, against Florida firefighters burning everything in sight,” Rhoades said. “The local Montana firefighters took a more cautious approach because of superior knowledge of fire behavior in western mountains. That made the case easy to put to the jury what strategy should be used.”

“Where (the Weavers’ crew) built their line was downwind from the main fire and they were able to stop it,” Rhoades continued. “That created a stark contrast. It’s hard to compare one fire to another. But when you have the same fire, no more explanation was needed. The conservative approach worked.”

Another case stemming from the fires of 2000 went the other way, when courts ruled the U.S. Forest Service was not liable for homes destroyed when firefighters set backfires in the mountains south of Darby.

Both sides argue a number of other issues, including whether the state could get a fair trial in Granite County, whether the Weavers’ payment of state fire assessment fees obligated the state to take special care of their land, and whether the trial properly considered all the evidence.

But both sides agreed the public duty doctrine ruling could decide the whole matter.

That ruling should arrive before November.