Appeal planned by property owners who suffered losses

By Marcy Stamper

The Washington Department of Natural Resources (DNR), the state’s primary firefighting agency, has no obligation to any individual to control wildfire, but only an obligation to the public in general. With that ruling last week, Okanogan County Superior Court Judge Chris Culp dismissed a lawsuit seeking damages in the 2014 Carlton Complex Fire.

Culp dismissed the lawsuit filed on behalf of more than 300 property owners who alleged that they lost homes, property, timber and cropland because DNR had been negligent in containing four separate fires that started on DNR land.

As a result of DNR’s “failure to exercise reasonable care,” the four fires spread and “the combined inferno became known as the Carlton Complex fire,” said plaintiffs’ attorneys Alex Thomason and Darrell Cochran in the court filings. The attorneys filed the first lawsuit in 2015 and added hundreds of plaintiffs in four other suits in 2017 just before the deadline. All five suits were consolidated.

The four original fires were known as the Stokes Road, Golden Hike, French Creek and Cougar Flat fires. The suit alleges that DNR was negligent in responding to the fires and then abandoned them overnight. It contends that DNR refused assistance of labor and equipment from local residents, failed to request additional help until it was too late, and didn’t rely on all available data, including weather reports.

Definition of duties

Patricia Fetterly, the state assistant attorney general representing DNR, argued that a law passed by the state Legislature in 1993 is clear that DNR, when acting as a fire-prevention and suppression agency, “is carrying out duties owed to the public in general and not to any individual person or class of persons separate and apart from the public.”

“With the passage of that statute, the Legislature statutorily brought negligent firefighting, and this very case, squarely into the public duty doctrine,” said Fetterly in the court documents. DNR does not vary its approach based on whether the fire is on public or private land, she said.

In his order dismissing the lawsuit, Culp reviewed the history of Washington’s fire-suppression laws. In a ruling in a 1990 lawsuit known as “Oberg” filed against DNR over damages caused by a fire near Tonasket, the state Supreme Court found that DNR, like private landowners, had a common-law duty to exercise reasonable care to prevent fire from spreading to neighboring property.

In 1993, after that ruling, the Legislature passed a new law “to effectively overturn the decision,” wrote Culp. The law specifies that DNR’s duty is to the public in general and not any individual, said Culp. The law also says that DNR retains its duties and responsibilities as a landowner, which Culp acknowledged “seems inconsistent” with the other sections of the law.

But, pointing to the specific statement in the law that DNR’s duty is only to the public in general, Culp said the landowner obligations encompass only duties like road maintenance and weed control. He rejected assertions made by Thomason in a late filing that DNR hadn’t asserted from the start that the Legislature had completely overturned the Oberg decision.

“The Legislature could not have more clearly evidenced an intent to eliminate any duty to the plaintiffs in this case if it had studied the very complaints filed by plaintiffs here,” said Fetterly in court documents.

Unprecedented conditions

Firefighters deployed on the Carlton Complex Fire, DNR staff, former Okanogan County District 6 Fire Chief Don Waller, and personnel with the regional dispatch center were all deposed in the case. They described extreme fire conditions that July, when the four fires that merged into the Carlton Complex started. In all, 74 fires started in Washington and Oregon on the same day as those four fires, said Fetterly. In addition, DNR produced more than 300 documents for the court.

In his deposition, Waller described severe drought conditions and high winds. Although firefighters typically considered the Methow River a good fire break, the fire crossed the river “so fast that it made your head spin,” said Waller. The fire “was just burning just faster than you could almost watch it … There was no stopping it, at all.” Waller said there was extreme fire behavior, the likes of which none of them had ever seen.

A crew leader assigned to the Golden Hike Fire near Gold Creek said they had to hunker down for safety as they were hiking up to the fire because lightning was striking right near them. Burning debris continuously rolled down the very steep slope, igniting spot fires below, he said. As they dug fire lines, “basically everything we touch is taking off and rolling down the hill below us,” he said. “More of the rocks that rolled by were starting fires than the ones that weren’t.”

There was no dollar amount named in the lawsuit, but all the plaintiffs had previously filed tort claims with the state Department of Enterprise Services for damages connected with the fire, ranging from $1,000 to more than $3 million. Filing a tort claim is required before people can pursue damages through the court system.

Thomason intends to file a motion for reconsideration in Okanogan County Superior Court by next week, according to legal assistant Lindsay Vallance. The motion for reconsideration will assert that Culp overlooked key details in his decision, she said. If the reconsideration is denied, they will appeal Culp’s ruling at the next level, said Vallance.