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Kimball v. United States

United States District Court, D. Idaho

February 20, 2014



EDWARD J. LODGE, District Judge.

Pending before the Court in the above-entitled matter is the United States' Motion to Dismiss or for Summary Judgment (Dkt. 13). Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this matter shall be decided on the record before this Court without oral argument.


Plaintiffs H. Michael Kimball, Willis W. White, David Beardmore, Thomas Baldridge, Orland Badley, Clayton Badley and Jerry Badley (collectively referred to as the "Plaintiffs") filed this lawsuit alleging negligence in the management of the Raines Fire in 2007 in the Payette National Forest. The fire destroyed properties owned by Plaintiffs. Plaintiffs allege four discrete acts of negligence by the United States Forest Service ("Forest Service"): 1) the Forest Service negligently informed landowners to stay away from their homes; 2) the Forest Service failed to track human resources properly and did not plan for one crew to "time out"[1]; 3) the pumps and hoses the Forest Service used on the fire were not set up properly; and 4) the backfire set by the Forest Service on July 20, 2007 was negligent.

It is undisputed the Raines Fire started on July 7, 2007 and was not the only forest fire being managed in July. The Incident Command Team was managing three fires in the area. The Raines Fire was started by a lightening strike and began burning in a designated wilderness area. Early on, the Forest Service decided to suppress the fire, rather than manage it as a wildland fire, due to the potential for the fire to burn to the Salmon River and pose a threat to private properties. On July 17, 2007, two division supervisors were assigned to the Raines Fire: Mike Story and Craig Campbell. The Incident Command Team decided two hot shot crews would be assigned to the fire on July 17th. The Logan Hot Shots arrived on July 17th and the Lewis and Clark Hot Shots arrived at the Raines Fire on July 18th. These crews were instructed to construct fire lines and set up pumps and hoses for the purpose of structure protection.

It is undisputed that the Raines Fire grew in strength daily and was moving closer to the privately owned structures at the Badley Ranch, Copenhaver subdivision and Mackay Bar. The Forest Service provided daily briefings on the Raines Fire to interested members of the public.

The Lewis and Clark Hot Shot crew had "timed out" and left their assignment at the Raines Fire at approximately 11:00 a.m on the morning of July 20, 2007. Prior to leaving, the Lewis and Clark hot shots had set up pumps and hoses around some of the Badley structures. A replacement hot shot crew arrived in McCall on July 20th but did not reach the Raines Fire until July 21st.

Potential high winds were expected on July 20th. Firefighters were briefed that it was a "red flag" day which means they were expected to experience a need for lot of fire fighting. In the afternoon around 1:30 or 2:00 p.m., the inversion lifted and high winds occurred causing the main Raines Fire to enlarge in size and speed. Some of the Logan Hot Shots left camp at 12:30 p.m. intending to prepare for a burnout operation later that day or evening. At 1:30 p.m., Mike Hanson of the Logan Hot Shots was located at Copenhaver and heard trees starting to torch and the wind was causing spot fires to jump the existing fire line. Hanson thought the burnout operation had begun.

Kendall Wilson, also of the Logan Hot Shots was located at Badley Ranch. He had been told earlier in the day by Campbell that if the conditions permitted, they could start the burnout before the relative humidity dropped as the Badley Ranch was prepped. Wilson said the Logan Hot Shots did not see the pumps and hoses set up at Badley Ranch until the afternoon of the fire and found they were not operational. It is unclear to the Court as to why the pumps and hoses were not operational - were they damaged in the cargo drop, were they not tested, were they damaged by the fire when it jumped the lines, or some other reason. It is undisputed the pumps were not soaking the land or structures when Wilson arrived.

It appears the pumps and hoses set up at Copenhaver worked until the fire caused the pumps to break down and/or the hoses to burn through. Then the firefighters relied on the pump of landowner Clint Swain.

Once the high winds arrived on July 20th, the Raines Fire became very intense very quickly. The record does not reflect that a "backburn" was set by the firefighters as it is undisputed that the weather and fire conditions were not conducive to a backburn being set. Backburns had been done at night previously on this fire when the weather conditions were calm and the fire was weaker.

The firefighters' testimony and notes are consistent when they indicate the main fire was in the trees which led to crown fires which led to sparks flying in the wind which led to spot fires that eventually jumped the established fire line. While a spot fire could have turned into a backburn fire unintentionally, the record also reflects the firefighters at Badley Ranch "fired the line" which was an emergency backfire to attempt to slow down the main fire coming their direction and create black (burned) space between the main fire and the line for a safety zone for the firefighters by reducing the fuel between the firefighters and the main fire. The testimony of firefighters at Badley Ranch is that the intentional "firing of the line" was unsuccessful as the main fire had become too powerful from the strong winds. The "firing of the line" did not slow down the main fire.

The fire at the Lower Badley Ranch was exacerbated by the explosives or ammunition stored in certain outbuildings. Once those items caught fire, the safety of the firefighters was priority one and it was no longer safe to try to save certain structures. It is undisputed that outbuildings at the Lower Badley Ranch were surrounded by vegetation that would serve as fuel for the fast approaching fire and no steps had been taken by the landowner to reduce the fuel around the structures.

In part due to the firefighters working with Luke Badley, the majority of the Upper Badley Ranch structures survived the fire. The firefighters at Copenhaver worked with Swain to save as many structures as possible, but once certain pumps failed and spot fires started, certain structures were lost at the Copenhaver subdivision. Again, firefighter safety was the main objective after propane tanks exploded at certain structures. The firefighters were successful in protecting the main structures at Mackay Bar.

The United States has filed a motion to dismiss or for summary judgment alleging this Court lacks subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) as the alleged negligent actions are subject to the "discretionary function exception" to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. ยงยง 2660(a) and the Plaintiffs are barred from bringing their claims. Plaintiffs respond the exception does not apply to the particular alleged negligent actions raised in this lawsuit and the matter should proceed to trial on the disputed facts.


A defendant may move to dismiss a complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) in one of two ways. See Thornhill Publ'g Co., Inc. v. General Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979)). The attack may be a "facial" one where the defendant attacks the sufficiency of the allegations supporting subject matter jurisdiction. Id. On the other hand, the defendant may instead launch a "factual" attack, "attacking the existence of subject matter jurisdiction in fact." Id. A "factual" attack made pursuant to Rule 12(b)(1) may be accompanied by extrinsic evidence. St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989); Trentacosta v. Frontier P. Aircraft Indus., 813 F.2d 1553, 1558 (9th Cir. 1987). "[N]o presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Thornhill, 594 F.2d at 733. Plaintiff must then come forward with evidence outside the pleadings to support his jurisdictional allegations. Trentacosta, 813 F.2d 1558.

However, "[t]he relatively expansive standards of a 12(b)(1) motion are not appropriate for determining jurisdiction [pursuant to a "factual attack"]... where issues of jurisdiction and substance are intertwined. A court may not resolve genuinely disputed facts where the question of jurisdiction is dependent on the resolution of factual ...

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