An appeals court recently upheld a ruling that the Forest Service was not liable for damages to private land caused by a fire that started on a National Forest. While the agency may be liable for failing to take required actions, it is protected from liability if it has to make discretionary decisions. The Forest Service chose to let the fire burn. In determining how to respond to the fire, the Forest Service was required to but did not complete a checklist which would guide its suppression efforts. The plaintiff argued that, because the agency violated this required action, it was not protected from liability. The court held that, even though the Forest Service violated a mandatory obligation to complete the checklist, the decisions to be made in completing the checklist were discretionary. The court further held that the nature of the agency’s decisions were grounded in social, economic and political concerns. Thus, its decision was the type which the law intended to protect from challenge.
The fire was started by lightning in the Pike and San Isabel National Forests. The fire could have been extinguished by the Forest Service when it first arrived on the scene, but was not. The agency set up a containment line to prevent the fire from spreading to adjacent private land but decided to allow the fire otherwise to burn based on a desire to remove built up fuels in the area as well as safety concerns if the initial fire were to unexpectedly increase in size. High winds then caused the fire to jump the containment lines and it burned 154 acres of an adjacent private ranch. Judge Gorsuch, recently nominated for the U.S. Supreme Court, was a member of the appeals court panel.