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Homeowners argue for new shot to sue over response to Smoky Mountains fire

Property owners who lost their homes and, in some cases, family members in a 2016 wildfire are fighting to hold the federal government liable for its failure to control the spread of the fire.

CINCINNATI (CN) — The National Park Service can be held liable for its failure to control the spread of a 2016 Great Smoky Mountains wildfire that caused over $1 billion in damages and killed at least 14 people, a group of property owners argued Wednesday before a federal appeals court.

The Chimney Tops 2 wildfire, which originated near Gatlinburg, Tennessee, on Nov. 23, 2016, grew rapidly after strong winds and drought conditions allowed it to escape a containment area. It ultimately burned over 17,000 acres of the Great Smoky Mountains National Park and surrounding area.

Several homeowners sued the federal government under the Federal Tort Claims Act, or FTCA, after their homes were damaged or they lost family members in the fire. They claimed the National Park Service failed to adequately control the blaze or warn them in time for an evacuation.

A federal judge dismissed the complaint in February 2022, ruling the homeowners failed to satisfy the notice requirements of the FTCA.

Specifically, Senior U.S. District Judge Ronnie Greer, an appointee of George W. Bush, determined the forms sent by the plaintiffs to the National Park Service failed to indicate that a "failure-to-warn" claim would be the primary cause of action in their federal lawsuit.

"The individual plaintiffs gave minimal notice and filled out an SF-95 for other claims," Greer said, "including for claims arising out of a failure to 'monitor' or 'extinguish,' but not for a failure to warn."

The homeowners appealed to the Cincinnati-based Sixth Circuit and argued in their brief that Greer interpreted the FTCA's presentment requirement too rigidly in his opinion and gave the government victory "on a technicality."

"The plaintiffs specifically alleged the National Park Service failed to follow its mandatory regulations to monitor and extinguish the fire, allowing it to spread beyond the Park boundaries," the brief states. "This information was sufficient to allow the government to investigate the incident – the Chimney Tops 2 Fire and the way it was handled by Park employees, ascertain the plaintiffs' potential claims, and decide whether to engage in settlement discussions."

They also argued the government waived its presentment argument because it failed to raise it before the district court until it filed its fourth motion to dismiss.

In its brief, the federal government argue the homeowners failed to give it adequate notice of the claims brought in their lawsuit, which left it unable to properly investigate its culpability.

"A failure-to-warn claim is 'a different theory of negligence' based on 'a different set of operative facts' involving the 'acts of a different group of employees' and subject to 'different policies and regulations,'" the filing states.

It highlighted the plaintiffs' failure to properly file the administrative forms by pointing out that various insurance companies specifically included language regarding a failure to "provide timely and accurate notice and warning to Park neighbors" prior to filing in federal court.

Attorney Ben Glassman of Squire, Patton, and Boggs argued Wednesday on behalf of the homeowners and told the three-judge panel his clients' notice forms provided all required information to the government for a failure-to-warn claim.

"We don't need to parse the language," he said. "The claim is just supposed to give the agency notice of what to investigate."

U.S. Circuit Judge Amul Thapar, a Donald Trump appointee, asked the attorney about the lower court's decision not to apply the discretionary function exemption to the claims regarding the National Park Service's response to the wildfire.

"These are discretionary calls," Thapar said in reference to how the government monitored the blaze.

"Policy choices have been made in the fire management plan, and it's just a matter of implementing them," Glassman said.

The attorney urged the panel to overturn Greer's decision and allow for further discovery.

"Let the district court decide it based on the full factual record," he said, "and then send it to this court."

Attorney Jeff Sandberg of the U.S. Department of Justice argued on behalf of the government and emphasized the discretionary nature of the decisions made by the National Park Service during the wildfire.

"There is no occasion to jump into the merits here," Sandberg said. "There is mandatory language [in the management plan] but it didn't specify a specific course of action."

The government's attorney shifted his focus to the notice forms provided by the homeowners, and while he admitted notice requirements are minimal, he argued the plaintiffs in this case still failed to meet them.

"[You must include] both your injury and what caused it," Sandberg told the panel. "They said they are challenging the firefighting."

The attorney argued the homeowners "rushed into court" before the government could adequately investigate and respond to their claim forms, which only alleged the park service failed to prevent the fire from spreading beyond the borders of the Great Smoky Mountains National Park.

"We want to do better, but we don't think it's appropriate for a judge to be Monday-morning-quarterbacking all of the decisions" made by the park service, he said.

In his rebuttal, Glassman reiterated his clients' failure-to-warn claim was contained in the notice form and pointed out that if the National Park Service had monitored the fire more closely, it would have provided a better warning to surrounding communities.

"There is no reason," he said, "if they've done the investigation and have all the facts, to punish the plaintiffs for using the wrong words."

U.S. Circuit Judge Eric Clay, a Bill Clinton appointee, and Senior U.S. Circuit Judge Helene White, an appointee of George W. Bush who participated remotely, also sat on the panel.

No timetable has been set for the court's decision.

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