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Wildfire Sparks Litigation

A lawyer seeking relief for dozens of Montana families who lost their homes in a wildfire is going after the federal government for information and $54 million. A claim filed against the U.S. Department of Agriculture's forest service by the 113 families and individuals affected by the blaze alleges that the forest service mishandled a wildfire in Montana's Bitterroot Valley on Aug. 6, 2000.

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A lawyer seeking relief for dozens of Montana families who lost their homes in a wildfire is going after the federal government for two things: information and $54 million. That’s how much a group of 113 families and individuals is seeking in a claim filed recently against the United States Department of Agriculture’s (USDA) forest service, alleging that the forest service mishandled a wildfire in Montana’s Bitterroot Valley on Aug. 6, 2000. The claim was filed on July 18, more than a year after the plaintiffs filed a related Freedom of Information Act suit to obtain documentary and videotape information allegedly withheld by the forest service. “The major stumbling blocks have been obtaining information from the government,” said attorney Michael Hertzberg of Howrey, Simon, Arnold & White in Washington, D.C., who began investigating the case two years ago. “We understood and believed the forest service did its own investigation, and appeared to be going to release results of that investigation,” Hertzberg said. “And that really hasn’t happened. This has been very frustrating to the people who have lost their homes. “There are obvious hurdles in dealing with the federal government, but we’re committed to seeing it through,” he said. 40 HOMES DESTROYED The plaintiffs, known as the Backfire 2000 Group, filed the claim under the Federal Tort Claims Act. As a result of the fire, 40 homes were destroyed, and all of the plaintiffs suffered significant property damage, the plaintiffs allege. According to Hertzberg, the Backfire 2000 members allege that the forest service initiated highly imprudent firing operations given the conditions, which included high winds and low humidity levels. They claim that backfiring and other firing operations led to a fire that spiraled out of control and consumed significant portions of nearby inhabited areas. Hertzberg v. U.S. Department of Agriculture, No. 01-2494 (D.D.C.). Hertzberg asserted these operations were conducted without warning being given to most residents and some firefighters. He furthermore claimed that a portion of these events was captured on a private citizen’s videotape, as well as on a contemporaneous video taken by forest service employees. Meanwhile, under the Federal Tort Claims Act, the forest service has six months to investigate the claim and determine its course of action. Heidi Valetkevitch, a spokeswoman for the USDA forest service, said it is forest service policy not to comment on any pending or ongoing administrative claims and litigation, including the claim and lawsuit related to the Backfire 2000 group. Assistant General Counsel Kenneth Cohen, a government lawyer who is supervising the tort claim, also would not comment on any specifics involving the case. He would only explain how the government handles such tort claims. First, the accused agency, in this case the forest service, investigates the claim and issues a report with its findings to the general counsel, who review the findings and determine whether or not to pay the plaintiffs. Cohen said that if the government decided to pay the plaintiffs, the money would come out of what is known as a “judgment fund,” which is available for court judgments and Justice Department compromise settlements of actual or imminent lawsuits against the government. The judgment fund, overseen by the U.S. Treasury Department, has no exact amount of money set aside in it. According to the judgment fund Web site, more than $41 million of judgment fund money was used to settle claims against the forest service during the last two years. Cohen said if the government decides that there’s no merit to the Backfire 2000 Group case and denies any payment, the plaintiffs can then sue in federal district court. “People are entitled to be compensated for their losses,” Cohen said. “But the facts have to be heard on both sides.” The USDA forest service said it does track its lawsuits, but it does not have a centralized filing system for lawsuits related just to wildfires. Cohen said the government can get between 200 and 300 tort claims a year.

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