Court Clarifies The Legal Test For Determining Government Liability for Backfire Damage

A federal court recently ruled on a claim that the government had illegally taken timber by deliberately burning the plaintiff’s timber as part of an effort to contain a wildfire and clarified the test for whether the government was liable for its actions.  The plaintiff owned timberland parcels that were surrounded by or adjacent to the Shasta-Trinity National Forest.  When a wildfire began in the area, the Forest Service engaged in backburning by deliberately setting fire to some of the plaintiff’s land in an effort to establish containment lines that the wildfire would not get past.  The court had initially ruled in favor of the government by finding that it was not required to compensate plaintiff for actions taken to prevent the spread of a wildfire.  That decision was overturned because the court had not determined if the threat to the plaintiff’s timber was imminent or if the backfires were necessary to stop the wildfire.  After being overturned, the court addressed the criteria for determining if the threat was imminent and backfires were necessary.

The Forest Service claimed that location and number of ongoing wildfires along with the dry conditions constituted an imminent emergency.  The plaintiff, however, showed that the spread rate of the fires was small and weather conditions moderated their growth.  The court held that a trial was needed to resolve this issue.   As to the need for the backfires, the court held that the government needed only to act reasonably in response to an actual emergency in order to be found necessary.  The court also held that the need for a response should be based on what was known at the time of the emergency, not in hindsight.  The parties disagreed over whether backburning was necessary based on the situation, with the Forest Service pointing to limited resources and the plaintiff alleging the agency put cost saving before protecting private property.  The court similarly held that trial was needed to resolve this question as well.