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Forest Service May Be Liable for Unsafe Backfire

(CN) - Property owners in rural Arizona can sue the Forest Service for not warning them that their homes were threatened by attempts to extinguish a wildfire, the 9th Circuit ruled Tuesday.

The federal appeals panel in San Francisco reversed a district court ruling that gave the agency immunity under the discretionary function exception to the Federal Tort Claims Act (FTCA).

The Bullock Fire raged through the Santa Catalina Mountains north of Tucson in the early summer of 2002, burning more than 30,000 acres in and around the Coronado National Forest.

Firefighters started a backfire - a blaze set intentionally to consume fuel in the path of a wildfire - near three private properties, but they failed to warn the owners or take any action to protect the properties, according to the ruling. The properties were clearly marked on Forest Service maps, and the owners had told the agency that their homes could be threatened.

Each property was burned when the backfire jumped its intended boundaries.

Property owners Silver Starr De Varona, John Ervin, and Gregory and Victoria Green sued the Forest Service for negligence under the FTCA, but the district court dismissed the case, ruling that the agency had immunity under the act's discretionary function exception.

The exception lets federal agencies and employees off the hook if they can prove that their actions were "susceptible to a policy analysis grounded in social, economic, or political concerns," according to case law as quoted in the appellate court's ruling.

Tuesday's reversal holds that the agency's failure to notify the plaintiffs of the backfire did not meet the exception's criteria.

"We reverse the district court because, although no statute or agency policy dictates the precise manner in which the Forest Service must act when it lights a backfire, there is no evidence in the record that the Forest Service's failure to notify the property owners of the backfire it lighted was susceptible to a policy analysis grounded in social, economic, or political concerns," Judge Carlos Bea for the three-judge appeals panel (emphasis in original).

Though the Forest Service "retained discretion in fighting the Bullock Fire" - especially as it related to the allocation of resources and other firefighting strategies - the agency's duty to notify property owners of a potential hazard that the agency itself created is another matter, Bea added.

"If the appellants had been notified of the proposed backfire, they might have been able to take measures to protect their properties, or at least ensured the Forest Service took measures to do so," Bea wrote. "For purposes of this appeal from a motion to dismiss, we find appellants' pleadings adequately state such a possibility."

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