Holding WDFW responsible for maintenance is like holding a contractor who changed carpet in the courtroom responsible when someone trips on the sidewalk outside the courthouse, said Washington Assistant Attorney General Jennifer Loynd.
Judge’s decision part of larger, ongoing lawsuit
One more legal determination has emerged from a complicated lawsuit related to responsibility for the 2015 Twisp River Fire: A jury trial will be necessary to clarify the responsibility of the Washington Department of Fish and Wildlife (WDFW) to maintain property it leased for a salmon-recovery project from the Douglas County Public Utility District (PUD). The deadly Twisp River Fire started on the PUD property in August 2015.
WDFW had submitted a motion in Okanogan County Superior Court seeking to be removed as a defendant in the complex lawsuit, which has multiple plaintiffs and defendants. WDFW is named in the suit because it operates an acclimation pond and weir on the property under contract with the PUD.
An investigation by the state Department of Natural Resources (DNR) determined that the Twisp River Fire started on the PUD property when tree branches rubbed against a powerline operated by the Okanogan County Electric Cooperative (OCEC).
In denying WDFW’s motion, Okanogan County Superior Court Judge Chris Culp ruled on May 29 that there are at least four material questions of fact in the contract between WDFW and the PUD.
The contract states that WDFW is responsible for performing routine maintenance and for notifying the PUD when major maintenance is required, said Culp. Although the contract doesn’t define either routine or major maintenance, there’s a genuine issue of material fact as to who was responsible, said Culp.
Question to consider
The question for the jury is WDFW’s responsibility for what the agency didn’t do — not what the agency did do, said Culp. WDFW also must prove to a jury the extent of its use of the property for the pond and weir.
A jury would have to determine whether WDFW should have known that tree branches were growing dangerously close to the powerline, posing a risk of fire, said Culp. The contract didn’t specify whether trimming trees constitutes routine or major maintenance, said Culp.
DNR and several insurance companies are suing OCEC to recover costs associated with the fire.
There is no evidence that WDFW staff knew — or should have known — about the risk posed by the tree branches, said Jennifer Loynd, the Washington assistant attorney general representing WDFW. No one identified WDFW personnel on site at the time of the fire, nor in the months preceding the fire, she said. WDFW staff are typically on site from mid-March through July, according to court documents. In 2015, their work was completed in June.
WDFW staff focus on husbandry of the pond. While there was a small house on the PUD property across from the pond, WDFW staff didn’t live there, but instead stayed in a trailer adjacent to the river, said Loynd.
The PUD’s 6-acre parcel is on both sides of Twisp River Road. The holding pond for juvenile fish and the weir are on the south side of the road. The fire started behind an abandoned house (since demolished) on the north side of the road.
Brett Goodman, representing 11 property owners with uninsured or underinsured losses, told the court that WDFW should have noticed a “witch’s broom” growth pattern on the tree, where the branches had grown into the powerline and been shorn off by repeated contact over more than four years. WDFW’s logs show that employees spent 502 days at the site from 2012 to 2015, said Goodman. “They had a duty to use reasonable care to inspect the property to keep [it] safe, which they failed to do,” he said.
If WDFW was responsible for taking care of the property, that would have been outlined in the contract, said Loynd, who contrasted it with contracts for employee housing at PUD-owned dams that explicitly assign maintenance responsibilities.
Holding WDFW responsible is like holding a contractor who changed carpet in the courtroom responsible when someone trips on the sidewalk outside the courthouse, Loynd told the court.
Larger case ahead
The purpose of last week’s hearing was solely to address WDFW’s contention that the agency should be removed from the case entirely. The substantive issues in the case against OCEC haven’t been addressed yet. Attorneys for the other parties attended the oral arguments by phone but had nothing to add to the proceedings.
OCEC attorney Scott Samuelson noted at the hearing that the electric co-op disputes DNR’s conclusions about where and how the Twisp River Fire started, but all parties agreed that point was not pertinent to WDFW’s petition to be removed from the case.
OCEC, WDFW and the PUD are named as defendants in all the lawsuits, which have been consolidated. The plaintiffs — DNR, several insurance agencies, and 11 property owners — allege that the defendants failed to take proper safety precautions by removing or pruning the trees to prevent contact with the powerlines.
DNR is seeking to recover more than $1 million to reimburse its costs for firefighting and investigation of the blaze. The insurance agencies and property owners are seeking to recover unspecified amounts for losses.
These fire cases, especially in the Methow Valley, are like the new normal. I don’t say that lightly. The new normal is a function of things largely beyond our control as human beings. It reminds us we’re all at the mercy of Mother Nature.
— Okanogan County Superior Court Judge Chris Culp
Culp was reflective about litigation over wildfires. “These fire cases, especially in the Methow Valley, are like the new normal. I don’t say that lightly,” said Culp, who said he’d ruled in lawsuits over the 2014 Carlton Complex Fire and in the personal-injury lawsuit filed by Daniel Lyon, the firefighter severely injured in the Twisp River Fire. Lyon’s case is currently under appeal.
“The new normal is a function of things largely beyond our control as human beings. It reminds us we’re all at the mercy of Mother Nature,” said Culp, who told the court that several of his family members have fought fires in the Methow Valley. He also stated his appreciation for WDFW’s role in rearing fish.
Discovery in the Twisp River Fire case is ongoing and no trial date has been set. The attorneys anticipate that a trial could last for weeks. Attorneys said they’re also exploring alternate means of resolution that would satisfy all parties.
The Twisp River Fire burned more than 11,000 acres and destroyed half a dozen homes. In addition to the injuries sustained by Lyon, three young firefighters were killed when their engine went off a road near the origin point.
