A property owner’s lawsuit over the U.S. Forest Service’s initial handling of two Utah wildfires in 2018 went down in flames last week after a federal judge concluded the Uinta-Wasatch-Cache (UWC) National Forest acted properly when it used its discretion to not immediately fight the fires.
U.S. District Judge Jill Parrish’s ruling marks a vindication for the Forest Service, which came under intense fire by Utah politicians after the Pole Creek and Bald Mountain fires were whipped up by high wind into a massive conflagration that would burn 100,000 acres and forced evacuations in Utah County foothill subdivisions.
The Salt Lake City judge also scorched the plaintiff’s lawyer, Quentin Rhoades of Montana, for distorting the facts and Forest Service wildfires policies to fit his narrative that officials foolishly gambled with public safety and intended the fires to consume woodlands off the national forest.
Rhoades filed the suit on behalf of the Strawberry Water Users Association (SWUA), whose lands and installations sustained unspecified damages in the fire and its aftermath. Immediately following a March 22 hearing before Parrish, Rhoades put out a news release predicting victory.
“Today was a win,” said Rhoades, a former smokejumper, in the release. “Judge Parrish was surprised at the extent of the havoc created by the Forest Service’s new policy.”
The judge’s ruling two days later, however, told a different story, expressing consternation with the havoc Rhoades himself stirred up in her courtroom.
“The court admonishes SWUA’s counsel for blatantly twisting the government’s written policy statements to make the case that the Forest Service intended to burn non-National Forest lands,” she wrote in her March 24 ruling. “It is also clear that, from ignition onwards, fire managers prioritized stopping these fires from disrupting human activities and reaching private land.”
There is a broad scientific consensus that the sorry state of the West’s national forests is the result of historic Forest Service policies of excluding fire from the landscape. Bringing fire back where practical is seen as a key part of restoring “ecological resilience.”
Rhoades’ news release singled out longtime UWC Forest Supervisor Dave Whittekiend for criticism, claiming his decisions resulted in millions of dollars of damage to private property, although court filings don’t provide much in the way of specifics.
“He failed to suppress them [the fires] when the opportunity allowed, and instead ordered firefighters away from the two fires so he could achieve what he called ‘natural resource benefits,’” it states. “Strawberry Water Users Association asserts that not putting out fires is the same as allowing them to burn.”
The two Utah fires were sparked by lightning late in the fire season near Mount Nebo, smoldering harmlessly for days while crews tended them under a newly adopted plan that called for harnessing naturally occurring fires to improve forest health. Crafted by the Obama administration in 2014, the overarching policy framework supporting that plan is known as the National Cohesive Wildland Fire Management Strategy.
In accordance with this framework, the UWC crafted “Red/Green” maps, indicating places in the forest where unplanned wildfires could be used to improve forest conditions. In green areas, fires could be managed, while red indicated areas where wildfires posed threats to communities and infrastructure. Accordingly, fires started in red areas were to be suppressed promptly.
The Uinta-Wasatch-Cache covers all the mountainous federal lands above the Wasatch Front, Utah’s major population center. This national forest is heavily used for outdoor recreation and provides culinary water for most of the region’s residents.
The Pole Creek and Bald Mountain fires both started well within areas marked green on the Red/Green maps, about six miles apart near Mount Nebo, according to Parrish’s ruling.
The blaze that would later grow into the Bald Mountain fire was first detected Aug. 24 inside the Mount Nebo Wilderness Area, on the mountain’s northeast flank. Instead of fighting that fire, officials opted to put it in “monitor status.” Putting out this tiny fire, burning on steep hard-to-reach terrain filled with beetle-killed trees, would have entailed a high degree of risk to crews assigned to it, forest officials said in a post-fire analysis of what went wrong.
“Initially, the fire grew slowly and the response from Forest Service fire managers matched its low intensity. After considering several factors, including firefighter safety, lack of values at risk, the composition of surrounding vegetation, the remote location of the fire, and weather, the Forest Service published an Incident Decision on August 27, 2018,” Parrish’s ruling states. “This report explained that managers planned to allow the Bald Mountain Fire to burn into unpopulated areas to the north, northeast, and east of its ignition point in order to ‘reduce unnatural fuel accumulations and restore fire to its natural role.’”
After two weeks that fire barely budged, affecting only 5.5 acres. Around that time, lightning sparked what became the Pole Creek fire about six miles to the southeast on Sept. 6.
Again forest managers were not too concerned, given how late it was in the fire season and the ground was soaked from recent rains. But this time, a “confine and contain” strategy was deployed in which officials actively managed the fire within a designated 210-acre footprint.
But nature had other plans. On Sept. 10, winds started kicking up, and within two days officials lost a handle on both fires and called in a massive firefighting response, among the biggest in Utah history.
“They [the flames] jumped fire lines and threatened private property that fire crews desperately tried to save,” Parrish wrote. “Although managers eventually brought the Fires under control, they did so long after they had spread far beyond their expected range.”
No one disputes that UWC bosses’ decisions helped enable two tame wildfires to become raging beasts, but Parrish rejected claims that the dire outcome is what they were aiming for. Because officials’ decisions were grounded within Forest Service policy, the agency enjoys immunity in this particular situation, the judge ruled in throwing out the suit.
According to Rhoades’ news release, the larger goal of the lawsuit is to challenge Forest Service wildfire “let burn” policies, which his filings allege were developed and implemented without proper analysis under the National Environmental Policy Act. The Pole Creek suit appears to be part of a broader legal campaign targeting these policies.
“Rhoades expects the matter will be elevated to the appellate court because it involves a novel legal theory,” his release said. “If plaintiffs prevail, Forest Service policy would change Nationwide. A win would result in payments in the hundreds of millions of dollars to plaintiffs in multiple fire lawsuits where the United States [Forest Service] acted outside its discretionary function exception in similar cases.”
Judging from last week’s ruling, Rhoades’ optimism may be premature.
