Schurg v. United States
| Decision Date | 08 February 2022 |
| Docket Number | Lead Case No. CV 20-61-M-DWM,Member Case Nos. CV 20-62-M-DWM,CV 20-63-M-DWM,CV 20-64-M-DWM,CV 20-65-M-DWM,CV 20-66-M-DWM,CV 20-67-M-DWM,CV 20-90-M-DWM |
| Citation | 584 F.Supp.3d 893 |
| Parties | Michelle SCHURG and Daniel Schurg, Plaintiffs, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — District of Montana |
Kris McLean, Jordan Anthony Pallesi, Tyson A. McLean, KRIS MCLEAN LAW FIRM, PLLC, Missoula, MT, for Plaintiffs.
John M. Newman, Randy J. Tanner, U.S. ATTORNEY'S OFFICE, Missoula, MT, Mark Steger Smith, U.S. ATTORNEY'S OFFICE, Billings, MT, for Defendant
This action involves many consolidated cases arising out of the Lolo Fire ("the Fire"), which took place during July and August 2017. The concerned plaintiffs are Michelle and Daniel Schurg, Beccie and Chad Miller, Jackie Lowe, Maureen and Larry Ernst, Joleen and Ronnie Harvie, Mark Stermitz, Michelle Stermitz, and Brian O'Grady (collectively, "Plaintiffs"). Here, Plaintiffs whose property included a house are referred to as "the Residential Plaintiffs." This designation includes all Plaintiffs except O'Grady. As stated in the previous order, (Doc. 57), Plaintiffs make claims sounding in intentional tort and negligence against the United States Department of Agriculture and the United States Forest Service, collectively referred to as "the Government." It is worth noting that the law Plaintiffs relied on when the case was filed was subsequently clarified in a way that undermines their cases. See Esquivel v. United States , 21 F.4th 565, 573 (9th Cir. 2021).
Both the Government and the Plaintiffs filed multiple motions for summary judgment, (Docs. 17, 20, 29),1 and an argument at a motion hearing was held on January 26, 2022. Following the hearing, the Government's motions for summary judgment were granted, while Plaintiffs’ motion for summary judgment was denied. (Doc. 57.)
Consistent with that order, the Government's motions were granted for the reasons set forth below, and judgment is entered in its favor.
The following facts are undisputed unless otherwise noted. (See Docs. 19, 22, 24, 31, 34); Tolan v. Cotton , 572 U.S. 650, 657, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014) (per curiam).
On July 15, 2017, lightning struck 10 miles southwest of Lolo and 6 miles up the South Fork Lolo Creek drainage area and ignited the Fire. (Doc. 34 at ¶ 1.) Because of the terrain, the Lolo National Forest Supervisor determined that the safest way to manage the Fire was through an "indirect strategy," meaning that firefighters wait and prepare for the fire to reach safer terrain before actively fighting it. (Id. ¶¶ 3–4.) The Supervisor placed an order for a Type 1 Incident Management Team ("the Team"), indicating that the fire represented the most complex type of incident. (Id. ¶¶ 5–6.) The Team was ordered because such teams "excel at long-term planning and public communication." (Id. ¶ 9.) Plaintiffs do not dispute that such teams generally excel at these activities, but they dispute that the Team here lived up to this expectation. (Id. )
On July 21, the Northern Rockies Coordination Center assigned Incident Commander Greg Poncin's Team to the Fire, and Poncin accepted delegated authority to manage the Fire from the Lolo National Forest Supervisor. (Id. ¶¶ 11–12.) On July 29, the Bitterroot National Forest and Montana Department of Natural Resources delegated authority to Poncin. (Id. ¶ 13.) Also on July 29, the Team internally circulated a "Structure Protection Plan for Macintosh Manor" that was prepared with the help of the Forest Service. (Id. ¶ 29.) The Plan included assessments for 900 properties, including Plaintiffs’, and labeled each property as one of four categories: Defensible, Standalone; Defensible, Prep and Leave; Defensible, Prep and Hold; or Non-Defensible, Prep and Leave. (Id. ¶¶ 29–30; see also Doc. 21-1 at 6–121.) While Plaintiffs note that the information in the assessments "would have been valuable" to them before fire reached their properties, they do not dispute that the purpose of the assessments was to assist firefighters in the event the fire eventually threatened residential areas. (Doc. 34 at ¶ 32.) In fact, such assessments are not public documents and are not provided to homeowners unless specifically requested. (Id. ¶ 33.)
By August 1, the Fire had increased in size while growing northward so that it encompassed over 5,000 acres. (Id. ¶ 35.) The Team described the growth of Fire in daily website posts available to the public on the Forest Service's website, "InciWeb." (Id. ¶ 36.) On August 3, Noel Livingston took over as the Incident Commander of the Team due to federal work/rest guidelines. (Id. ¶ 38.) On August 4, Lolo National Forest staff provided a decision document that considered current fire conditions and included updates to the Management Action Points established in previous decisions. (Id. ¶¶ 41–42.) Between August 4 and August 10, the Fire continued to grow northward, in the general direction of Plaintiffs’ properties. (Id. ¶ 44.)
Between August 13 and August 17, the Fire developed and damaged Plaintiffs’ properties. While the facts for each individual Plaintiff are outlined separately below, a few facts are common to all Plaintiffs. First, at 10:00 p.m. on August 16, the Missoula County Sheriff's Office issued an evacuation order to residents in the area that included Plaintiffs’ properties. (Id. ¶ 77.) Second, during this general period, the Team utilized "firing operations," or backburns, which is "the controlled application of fire between established containment lines and an active fire front." (Doc. 18 at 7.) Finally, the Government does not generally dispute that Plaintiffs were injured and that their properties were damaged; rather, the Government disputes the severity and extent of Plaintiffs’ damages and denies any liability for those damages.
Plaintiff Brian O'Grady is a Colorado resident, and he was residing in Colorado during the Fire. (Doc. 34 at ¶ 52.) He purchased the property at issue in 2013 and visited it two or three times a year. (Doc. 31-23 at 7.) On the evening of August 13, the Fire spread onto the easternmost section of his land. (Doc. 34 at ¶ 47.) The parties dispute the depth of O'Grady's knowledge, but they do not dispute that he had knowledge of the Fire from its inception. (Id. ¶ 53.) In fact, O'Grady was driving to Montana when he found out about the Fire, (Doc. 31-23 at 7), and between mid-July and August 17, O'Grady checked InciWeb "most days" for updates, (Doc. 34 at ¶ 131).
Additionally, "[t]he United States identified [O'Grady] as a landowner likely to be impacted by the Fire and possessed Mr. O'Grady's telephone number on the [Incident Management Team]’s contact list." (See Doc. 21 at 3; see also Doc. 21-2.) But O'Grady contends that the Forest Service "began aerial and ground firing operations on [his] property without notifying or informing him at any time." (See O'Grady v. United States , 9:20-cv-90-M-DMW (Doc. 1 at ¶ 21).) The Government admits that, on August 14, it made the decision to conduct firing operations, (Doc. 32 at ¶ 20), but the Government asserts that firing operations did not actually occur on O'Grady's land until August 17, (id. ¶ 32). While the Government disputes whether it had a duty to contact O'Grady, it does not dispute that it did not contact him before conducting the firing operations. (Doc. 32 at ¶ 21.) And, unlike the other Plaintiffs, the Government acknowledges that it conducted firing operations directly on O'Grady's property. (See Doc. 19 at ¶¶ 18, 21.) O'Grady argues that these operations "destroyed [his] forested lands, roads, culverts, and real property." (O'Grady , Doc. 1 at ¶ 23.)
At all the times relevant, Michelle and Daniel Schurg resided at 16252 Folsom Road. (Doc. 1 at ¶ 1.) Unbeknownst to the Schurgs, their home had been designated as "Defensible, Stand Alone" at the time of the Fire. (Id. ¶¶ 11, 13.) On August 17, the Schurgs disregarded the evacuation order and did not evacuate, despite the encroaching fire, and instead remained on their property and defended their home. (Doc. 18-1 at 9.) The Schurgs allege that, as they fought the Fire,2 firefighters with the Forest Service observed their efforts but did nothing to help. (Doc. 31-37 at 34.) The Schurgs saved their home, but portions of their property burned and they "discovered burn holes in their deck." (Doc. 1 at ¶ 65.)
At the times relevant, Chad and Beccie Miller resided at 16485 Folsom Road. (See Miller v. United States , 9:20-cv-62-M-DWM (Doc. 1 at ¶ 1).) Unbeknownst to the Millers, their home was designated as "Defensible, Stand Alone" during the time of the Fire. (Id. ¶¶ 11, 14.) On the night of August 16, 2017, the Millers received notice that they had to evacuate. (Doc. 34 at ¶ 142.) However, Mrs. Miller did not receive notice from the Forest Service, but from her daughter, who was apparently informed by the Millers’ neighbors. (Doc. 31-30 at 8.) At the time of the evacuation notice, Mr. Miller was away, so Mrs. Miller called him to tell him about the evacuation order. (Id. ) Mrs. Miller and her daughter evacuated from their home and allegedly experienced significant difficulty evacuating the Millers’ animals, which included pigs, chickens, dogs, horses, and goats. (Doc. 31-30 at 15–16.) Although the Millers’ home did not completely burn, it sustained smoke and heat damage, and parts of the property and fencing were destroyed. (See Miller , Doc. 1 at ¶¶ 37, 39.)
Three Plaintiffs are tied to this case by the property at 16595 Folsom Road: Jackie Lowe (Lowe v. United States , 9:20-cv-63-M-DWM); Mark Stermitz, (Stermitz v. United States , 9:20-cv-66-M-DWM ("Stermitz I ")); and ...
To continue reading
Request your trial