Forest Service policies didn’t cause 2003 blaze, judge rules

Forest Servicepolicies didn’t cause 2003 blaze, judge rules

2 November 2007

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USA — A federal judge has ruled the U.S. Forest Service’s land managementpolicies didn’t cause a devastating 2003 California forest fire. The ruling inthe potentially high-stakes case could help shield the Forest Service from otherclaims that preventable fires amount to a taking of private property.

“A hunter started the (2003) fire,” U.S. Court of Federal ClaimsJudge John P. Wiese noted. “And unless one is prepared to say the hunterwas acting as the government’s agent, causation cannot be attributed to thegovernment.”

Wiese’s ruling, quietly published Thursday, dismissed a lawsuit by 14Southern California residents who lost their homes when the Cleveland NationalForest burned.

The Cedar Fire, near San Diego, burned 273,000 acres, destroyed more than2,200 homes and took 15 lives. It was one of California’s most destructive firesever.

But the new ruling’s significance extends beyond the Cedar Fire specifics.Simply put, a claims court loss could have exposed the Forest Service to otherlawsuits likewise demanding payment for private property lost in a forest fire.The Fifth Amendment requires “just compensation” when private propertyis “taken for public use.”

In their lawsuit filed a year ago, the Southern California residents arguedfederal land management policies set the stage for the fire that took theirhomes.

“The acts of the federal government here caused this conflagration,plain and simple,” Chicago-based attorney Mark Grotefeld declared duringmid-October oral arguments, adding that “they knew if this fire breaks out,it’s just going to take the land of neighbors.”

Grotefeld further advised Judge Wiese he is likely to appeal the ruling,while the government claims the fire was not its fault.

“I can appreciate … just how tragic this incident was,” JusticeDepartment attorney Heidi Hermann said in court, “but the point of theFifth Amendment is not for the government to assume responsibility for all suchtragic events.”

The stakes appear high because forest fires are so common.

The most recent swarm of Southern California fires included a 12,759-acre SanBernardino National Forest fire that destroyed 272 homes and a 58,401-acre blazein the Angeles National Forest that destroyed one home and nine outbuildings.

Throughout the Sierra Nevada, too, fires begun on national forests havedestroyed private property and occasionally proved fatal. In 2004, 23-year-oldfirefighter Eva Schicke, of Arnold, died while fighting a fire that started inthe Tuolumne River Canyon of the Stanislaus National Forest.

Assigning blame can get tricky.

Last summer, for instance, angry Lake Tahoe-area residents complained thatrigid forest protection rules had contributed to the buildup of fuel and thesubsequent spread of the Angora Fire in June that destroyed more than 250 homes.

In their claims court lawsuit, Richard Cary and his fellow homeowners hadsimilarly blamed the Forest Service for the buildup of fuel in the ClevelandNational Forest.

“What we’re alleging in this case has to do with 100 years of managementof a forest,” Grotefeld asserted during oral arguments, a transcript shows.

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