On that afternoon, a large fire was burning in Gilbert Creek south of Dickson Creek as well as elsewhere in the valley. There were spot fires in Spade Creek at the same time. By midafternoon, the temperature was 92 degrees, the humidity was very low and the wind was coming up.

Firefighters set the backburn near the mouth of Spade Creek.

The families who filed the lawsuit claimed the backburn destroyed their properties. The government claimed the Spade Fire caused the damage.

Molloy said it didn’t matter which fire did what or whether the government employees’ actions were “wise, foolish or negligent.”

Instead, Molloy said the firefighter’s decision was protected under the discretionary function exception of the federal Tort Claims Act, which offers federal employees who exercise discretion within the scope of their employment immunity.

“Congress created the land management agencies and granted authority and broad discretion to fight wildland fires on public lands,” Molloy wrote. “How federal agencies fight wildland fires and balance the concomitant dangers to lives and property on public and adjacent lands constitute the exercise of discretionary social, political and economic policy.”

Without the backfire, the Spade Fire may have jumped the highway or trapped firefighters on other fires or spread to other areas and threatened other people and their property, Molloy said.

“Firefighters must consider a course of action that best provides for the public good, not which course of action exposes them to the least tort liability,” Molloy said in his decision.

“The Forest Service’s decision to set backfires was a policy judgment in that it ‘involved a balancing of considerations, including cost, public safety, firefighter safety, and resource damage,’ and “these considerations reflect the type of economic, social and political concerns that the discretionary function is designed to protect,” said the Ninth Circuit Court of Appeals decision.

Bitterroot National Forest Supervisor Dave Bull said the agency was “pleased” with the Ninth Circuit’s decision.

Firefighters need to be able to be able to make decisions based on the best information they have at the time without having to second guess themselves over potential liability concerns, Bull said.

If the decision had gone the other way, it could have created a precedent that would have made it difficult for firefighters to do their job, he said.

“If a firefighter has to start worrying about liability when they are having to make critical tactical decisions, they could end up standing there with their hands in the their pockets instead of fighting the fire,” he said.

The recent court decision left many families in the southern Bitterroot Valley disappointed.

Carter Giles of Darby lost everything in the firestorm that ensued up Dickson Creek.

“Our house imploded,” Giles said. “The fire burned that hot. They figured it was 2,400 to 2,500 degrees. Everything I owned - my home and barn - was taken away in a small dump truck.”

Giles is bitter about the agency’s decision to light backfires that day.

“If it had been a natural fire, it would be one thing,” he said. “There were some serious errors made that took us all out.”

He’s upset with the court’s decision to throw out the case.

“Our attorneys did a great job for us,” Giles said. “This case just shows that the Forest Service can do whatever they want and God help you.”

Editor Perry Backus can be reached at 363-3300 or editor@ravallirepublic.com

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