A ruling in Okanogan County over the Carlton Complex wildfire and the state’s related culpability highlights a dangerous double standard in Washington state: While private residents and commercial landowners can be held liable when fire starting on their property spreads onto other lands, the state Department of Natural Resources cannot be held liable.
Okanogan County Superior Court Judge Christopher Culp dismissed a lawsuit filed by hundreds of property owners who lost their homes in the wildfire — the largest ever in state history — citing a 25-year-old change in the law that gave Natural Resources cover from legal action related to wildfires, even when there was negligence.
And in the case of the Carlton Complex, there was a lot of negligence, followed by a lot of passing the buck.
The wildfire complex initially started as multiple wildfires during a very hot day in July. Lightning strikes ignited several blazes in the county, mostly on public lands managed by state and federal agencies.
The fires could’ve — and should’ve — been extinguished. They were small and manageable.
But state Department of Natural Resources officials, on at least two occasions, prevented local residents, including one county commissioner, from extinguishing the blazes. They cited possible environmental damage as the reason and said they had the fires monitored.
The wind came up in the 103-plus degree weather. Embers caught by the wind started to spread the flames. Wood snags started to burn, break off and roll downhill, spreading the fire further. It didn’t take long and the agency was calling for help.
As the publisher of the newspaper serving all of Okanogan County at the time, I had my Chronicle staff keeping tabs on each tidbit of information so we could provide our readers with up-to-the-minute information on what would become the largest fire in state history.
Natural Resources couldn’t control the fire, and help couldn’t arrive fast enough. Dead and dying timber, dry grass, high heat and gusty winds were too much for the inadequate resources allocated. To add insult to injury, smokejumpers from the base in Twisp were dispatched to fires elsewhere by federal fire officials that took command. They weren’t even allowed to protect their county, or even their homes.
Oh yes, there was negligence. There were poor decisions.
And there was culpability. Except, thanks to the Legislature, there wasn’t.
Culp, in ruling on a Natural Resources motion to dismiss, found the agency was exempt from liability.
In 1993, the state Legislature amended Revised Code of Washington 76.04 to include a new subsection, .016. That section gave the agency protection from lawsuits over failed fire-related practices. That amendment came about after the state Supreme Court found in 1990 that the agency had to follow the same basic rules as all private landowners.
Upset, the Legislature reacted and protected the state agency, rather than the taxpayers. That action led to the Oct. 24 dismissal, and the double standard we are now living with.
Ironically, a couple men were arrested and charged in Okanogan County courts for taking action during the Carlton Complex in defense of their own property. The men set back burns, but could not keep them under control.
As a result, they were charged in court because their actions could’ve harmed firefighters and others, and because grass and timber on surrounding property burned.
Yet, here we are four years later, and negligent state officials get a pass.
But the case isn’t over, and I’m sure the attorney for the plaintiffs, Alex Thomason of Pateros, will ask Culp for reconsideration. I’m also sure that he will appeal to a higher court.
I don’t see Natural Resources backing down, either. The agency manages a lot of public land, and its holdings continue to grow each year.
If the agency, its employees and leadership were held responsible for failed management practices and decisions that led to wildfires, the state couldn’t afford to continue to purchase additional lands and then maintain them.
There’s a lot at stake in this case.
Judge Culp is a very astute judge — he knows his business. Attorney Thomason is a very passionate attorney who will continue to fight for his clients. And the state will continue to claim its in the best interest of taxpayers to give Natural Resources a pass.
While this issue will likely remain contentious for years, rural residents should be pressuring the Legislature to level the playing field.
Why should a private landowner or business manager who makes a poor choice during fire season face time in prison when a paid, professional land-management agency and its employees get a pass?
That’s something rural landowners should be talking to lawmakers about as the upcoming legislative session gets under way.
Without a level playing field, it’ll be private and commercial landowners who ultimately pay the price for wildfires. And it won’t make any difference if the next wildfire starts on their property or if it starts on government-managed lands and spreads to their homes.
Roger Harnack is the publisher of the Colville Statesman-Examiner and Deer Park Tribune. Email him at firstname.lastname@example.org.