Court trims federal immunity in Oregon wildfire suit

PORTLAND, Ore. (CN) — A federal judge ruled Wednesday that the government must face claims it failed to remove a hazardous tree that helped spark one of the largest wildfires in Oregon’s history. 

U.S. District Judge Mustafa Kasubhai, a Joe Biden appointee, found that while the government is shielded from claims it caused the Holiday Farm Fire by failing to prevent the energization of its power lines, it isn’t shielded from claims that it failed to remove a dangerous tree.

The Holiday Farm Fire burned over 170,000 acres in Lane County over Labor Day in 2020, killing one person. 

Two fires merged to create the deadly blaze. A U.S. Forest Service investigation revealed the first fire sparked after a tree fell on a de-energized power line and it pushed it onto an energized power line. 

The second fire started when a tree fell on a Bonneville Power Administration line, pushing it into ground vegetation that ignited when the line was energized. 

The fire spawned multiple lawsuits, which the court consolidated, primarily consisting of residents, representatives and legal entities harmed by the fire, as well as a group of over 150 insurance companies that paid policy claims for losses resulting from the fire. 

The lawsuit named the federal government and three electrical utilities as defendants: the Bonneville Power Administration, which the federal government operates under the Department of Energy, the Eugene Water and Electric Board and Lane Electric Corporation.

The plaintiffs say the federal government, acting through the Bonneville Power Administration, caused the fire by failing to remove a hazardous tree near its power lines and by failing to properly operate its power lines. 

While the federal government is immune from lawsuits, the Federal Tort Claims Act allows people to sue for injuries caused by a government employee’s negligence while on the job. 

However, under the discretionary function exception, the government is immune from claims arising from decisions made by federal entities when those decisions involve discretion, even if that discretion is abused.

The plaintiffs accused the Bonneville Power Administration of failing to prevent a tree from falling on its power lines, but the government argued it has discretion to identify and remove such trees.

The discretionary function exception doesn’t apply when decisions are removed from public policy considerations but does apply when the decisions are fully grounded in regulatory policy. The key question is whether the power agency’s decisions were policy-based or routine maintenance.

Kasubhai determined, despite the federal government’s arguments otherwise, that the power administration doesn’t require its employees to rely on public policy considerations when assessing whether a tree has reached the threshold for removal. 

“The distinction, here, sees the forest for trees,” Kasubhai wrote. “The identification of danger trees is not susceptible to public policy considerations, and the discretionary function exception does not protect a failure to identify a danger tree.”

The judge found the removal of a danger tree is likewise not protected by the exception.

“Immunizing the United States for standard maintenance of the sort here would run counter to the directive that courts should construe the [Federal Tort Claims Act’s] waiver broadly and its exceptions narrowly,” Kasubhai wrote.

However, Kasubhai found the same was not true for the claims regarding the power lines.

The plaintiffs argued Bonneville Power Administration’s policies required it to take actions to manage the electricity running through the power lines on the day of the fire.

The power agency’s policy requires “the exercise of reasonable judgment.”

“Although BPA dispatchers may rely on professional and technical experience to choose between the policy goals, the choice itself involves balancing competing objectives grounded in political, social, or economic policy,” Kasubhai wrote. 

Kasubhai disagreed with the plaintiffs’ argument that the federal government couldn’t show that allowing the energization of the Bonneville Power Administration’s power lines implicated policy concerns. 

The court therefore dismissed the claims accusing the Bonneville Power Administration of causing the fire by failing to prevent the energization of power lines, but allowed the claims regarding the tree removal to proceed. 

Neither side responded to a request for comment before press time.