Missoula, MT — When Forest Service officials decided to let two wildfires burn near Spanish Fork, Utah in the summer of 2018, they were hoping the fires would do good by thinning forests and restoring fire to fire-dependent ecosystems.
Instead, the fires burned over 120,000-acres doing widespread damage to private and public property, municipalities, utilities, and others either directly affected by the fires or in post-fire flooding that continues today.
A total of 31 parties are known to have filed tort claims against the United States Forest Service for damages inflicted by the Bald Mountain and Pole Creek Fires. The last claims were filed last week with the USDA Forest Service, Albuquerque Service Center, Claims Branch, in Albuquerque, New Mexico and Ogden, Utah. Joi Lin Olsen of Ogden, Utah is the lead Forest Service claims officer.
Quentin Rhoades of Rhoades Siefert & Erickson said he and his partners are representing many of the claimants and will aggressively pursue compensation for damages resulting from the fires and flooding. “Tort claims are the first avenue of redress against the Forest Service under the Federal Tort Claims Act (FTCA),” Rhoades said.
“The Forest Service walked away from these fires and private property was badly damaged,” said Frank Carroll, managing partner at Professional Forest Management, a wildfire consultancy assisting with the Bald Mountain and Pole Creek fire claims. “People won’t recover from those fires for many years.”
Forest Supervisor Dave Whittekiend decided to allow the August 24, 2018 Bald Mountain fire to burn to meet “restoration objectives” near the Mount Nebo Wilderness. He hoped the fire would help reduce fuels and restore fire to a fire-depleted ecosystem. Rain in the area convinced him to use the “unplanned fire” to manage National Forest resources.
On September 6, 2018, a helicopter crew “reported the Pole Creek Fire as 40 foot by 40 foot in size, burning roughly 6 miles to the southeast of the Bald Mountain Fire,” Whittekiend wrote in his report of the fire (https://wildfiretoday.com/documents/PoleCreek-BaldMtn_FLA_Final.pdf). “Smoke was visible from the trailhead when the ICT4 [senior firefighter in charge] hiked to the fire, which was burning in a 40-foot long log, but not carrying in the fine fuels,” he wrote. “While we were there…a thunderstorm built to the east of the fire and began tracking towards the area. We were getting wetting rain as we hiked back to the trailhead.” The firefighters left the fire to burn despite red flag warnings and worsening fire conditions. Whittekiend rejected calls from firefighters on scene for more firefighters and air tankers on September 10.
“The Forest Service had no legal authority to decide to allow these fires to burn,” Carroll said. “They have not completed required analysis from the National Forest Management Act (NFMA) or followed required procedures in the National Environmental Policy Act (NEPA) which would allow them to take a major federal action like burning 120,000 acres on purpose….Using unplanned wildfire in the right place at the right time is an aspirational concept unanchored in law,” Carroll said.
Whittekiend claimed a major factor in his decision was the safety of firefighters having to operate in snag fields and rugged terrain. The record does not bear out his concern, Carroll said. Of the 16 Forest Service firefighter line-of-duty-deaths in the past decade, 3 died as a result of falling trees. “It’s far more dangerous to allow huge fires to burn,” Carroll said. “Most of our accidents and fatalities are from incidents related to fighting big fires like those in California today, not in initial attack.” More than 25,000 firefighters work eight months a year fighting fire.
Further damage occurred when firefighters lit burnouts or backfires while fighting the fire, particularly along North Highway 89 near Thistle and Birdseye, Utah. Many of the fires lit by firefighters never made it to the main fire but burned thousands of acres of private property in the attempt, Carroll said.
Claims are over $150 million dollars for his clients, Rhoades said, but there are more claims filed that bring the total to $200 million or more. Totals are not known as there are additional claimants filing separately. Claimants include Elk Ridge City where post-fire mud and debris flows continue to threaten residents; Strawberry Water Users Association where the fire and post-fire flooding did major damage to the utility’s infrastructure; and dozens of private property owners large and small, whose property was burned or damaged by post-fire flooding.
Rhoades expects the various claims to be heard in federal district court within two years.
