Carlton Complex fire lawsuit dismissed

A Pateros home burns the night of July 16, 2014, as the Carlton Complex fire sweeps through town.

OKANOGAN – A lawsuit against the state Department of Natural Resources over losses from the Carlton Complex fire has been dismissed.

Okanogan County Superior Court Judge Chris Culp, in an Oct. 24 decision, granted the state’s request for summary judgment of dismissal. He also certified the matter for appeal.

The lawsuit, originally filed in November 2015, was a consolidation of five suits brought by around 200 landowners against DNR over the 2014 Carlton Complex fire. The original 2015 suit was filed by three landowners – David Schulz, Deannis Schulz and John Clees – but earlier this year was combined with four other suits filed in 2017 by various landowners throughout the fire area.

In his written decision, Culp wrote that the question is whether an actionable duty was owed by the defendant (DNR) to the plaintiffs.

The landowners argued the lightning-caused complex fire, which had several points of ignition, started on DNR land and the agency had the obligation to stop the flames’ spread onto other owners’ lands. They argued negligence and violations of state law, and claimed liability because of DNR’s “unreasonable actions and/or inactions caused the spread of fire,” said court documents.

The three causes of action argued by the landowners included both acts of DNR as a landowner and in its firefighting efforts.

“There is a question about whether defendant’s motion addresses DNR’s actions in fire suppression or its duties as a landowner; however, this court ruling is that defendant has no statutory or common law actionable duty to any of the plaintiffs, either in fire suppression responsibilities or as a landowner,” Culp’s decision said.

Plaintiffs asked whether and to what extent a 1993 state law changed the state Supreme Court’s ruling in a previous case, Oberg v. Department of Natural Resources. That case was brought in the wake of the 1985 Barker Mountain Fire east of Tonasket.

The Legislature’s subsequent decision to update state law effectively overturned the Oberg decision by adding a new section dealing with duties owed to the general public by DNR in its fire prevention and suppression capacity, Culp wrote.

According to the law, the department, when acting in good faith in its statutory capacity as a fire prevention and suppression agency, “is carrying out duties owed to the public in general and not to any individual person or class of persons separate and apart from the public.”

“It makes no sense that the Legislature would go to great lengths to effectively overturn Oberg but then add back in some actionable duty to individuals,” Culp wrote. “Rather, this court reads the last sentence (of that portion of the law) to impose those duties typical of landowners in general, for example road maintenance, erosion control, weed control, nuisance control, etc. By using ‘nothing’ in the second sentence (of the law), the Legislature rejects the idea of any duty owed by the DNR to individuals for anything related to fire.”

He wrote that he interprets the law as barring plaintiff’s actions as individuals “even given the duties imposed on landowners in the sections cited as the basis of plaintiff’s complaint.”

At the end of his written opinion, Culp noted that the parties stipulated on Oct. 11 that certification of the decision to the state Court of Appeals is appropriate.

“The court finds this memorandum opinion granting summary judgment involves a controlling question of law as to which there is substantial ground for a difference of opinion and immediate review of the order may materially advance the ultimate termination of the litigation,” he wrote.

An additional hearing in Superior Court over findings of fact and conclusions of law in the lawsuit was scheduled for Oct. 26, but was stricken from the court calendar.

The original suit was filed Nov. 17, 2015, by rural Twisp residents David and Deannis Schulz, and John Clees. David Schulz is a former Okanogan County commissioner. They claimed they suffered damage to real and personal property when the Golden Hike Fire escaped from DNR land and onto their property.

The Golden Hike Fire later merged with three other fires to become the Carlton Complex, which blackened 256,108 acres of land from Winthrop to Pateros and across the mountains to Malott and the Chiliwist. The blaze leveled 237 homes, 53 cabins, plus barns, other outbuildings and fences, and destroyed vehicles and farm machinery. Livestock and wildlife were killed, and timber, orchards, other crops, range land and infrastructure were damaged.

The suit alleged DNR caused millions of dollars in damage by failing to use reasonable care to contain the fire.

In 2017, another 200 or so landowners filed four more lawsuits against DNR over the fire.

“Between approximately July 14, 2014, and Aug. 30, 2014, plaintiffs suffered damages to real and personal property when fires escaped from land owned and/or controlled by defendant State of Washington and trespassed onto land owned by plaintiffs,” said one filing.

“At all relevant times, plaintiffs were residents and owners of real property in Okanogan County,” said the suit. “Their property included timber land, crop fields and/or land which had been improved, including fences, buildings and other structures.”

All the plaintiffs sought damages for losses.

The fires originally were confined to small areas on land owned or under DNR’s responsibility, the suit said.

“Residents of the surrounding areas promptly notified the defendant of the existence and location of the fires,” according to the filing. “Despite this early notice, the defendant was negligent in responding. When it did eventually respond, the defendant was negligent in containing the fires.”

The suit alleges DNR failed to exercise reasonable care by abandoning fire lines in the evening and not returning until morning.

“The defendant failed to exercise reasonable care by refusing and ignoring the assistance of local residents who offered to help contain the fires, including materials, labor and knowledge of the geography and access to the fires,” the suit said. “The defendant failed to exercise reasonable care to timely deploy all available resources, including equipment and personnel, to the fires.”

When resources were deployed, DNR didn’t exercise reasonable care in their deployment by preventing others, including firefighters, local volunteers, property owners, neighbors and other residents, from helping battle the fires, the suit alleged.

Help was not sought until it was too late to prevent the fires’ spread, the landowners alleged.

In addition, the suit charges that DNR failed to rely on all reasonably available data and information to fight the fires, including weather reports.

Plaintiffs were represented by Alex H. Thomason of Thomason Justice, and Darrell L. Cochran, Jason P. Amala and Beth Davis of Pfau Chochran Vertitis Amala.

The five lawsuits were joined in July 2017. All plaintiffs were represented by the same attorneys, all suits arose from the same fire and all involved claims against DNR, said court documents.

“Given these commonalities, the parties agree that consolidation will serve the interests of judicial economy by achieving the most efficient use of the court’s resources, as well as the resources of the parties, at lest during the discovery phase of the cases,” said the order consolidating the cases.

The parties agreed to revisit consolidation for trial.

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