Law Review: Controlled fire escapes, results in lawsuit


“Of all the foes which attack the woodlands of North America no other is so terrible as fire.”

— Gifford Pinchot, First Chief of the US Forest Service.

That quote was the lead sentence in our Ninth Circuit Court of Appeals opinion.

A burnout fire is a controlled, low-intensity fire designed to burnout only the most flammable fuel sources near a fire line. In our case today, the fire line was on the edge of the North Star Fire in northeastern Washington.


On Aug. 12, 2015, the human-caused North Star Fire began to burn on the Colville Indian Reservation in northeastern Washington, which eventually combined with other naturally caused fires to form the Okanogan Fire Complex. The Complex was at that time the largest wildfire in Washington State’s history.

The North Star Fire was assigned to a Type 2 Incident Management Team which included a structure group led by Thomas McKibbin who was then employed by BLM.

The fire reached a 90-acre parcel owned by Donald Willard who was living in a motorhome on the property. According to McKibbin, Willard expressed distrust of the Federal Government and worried that firefighters intended to excessively burn his land in order to save adjacent federal lands.

According to Willard, McKibbin told him that he did not have to worry about excessive burning and he and his crew were going to spray foam around the area so the fire would not spread very far. You know what happened next, the fire escaped and burned 15 acres of Willard’s property.


Willard filed an administrative claim with BLM, followed by a lawsuit in federal court under the Federal Tort Claims Act (“FTCA”).


The United States can be held liable for tort (civil) claims just as a private individual; however, Congress gave the government broad waivers with immunities for several types of tort claims. But of course.

As to Willard’s claim, two particular immunities apply: the discretionary immunity and the misrepresentation immunity. The fact that there is a discretionary immunity and a misrepresentation immunity suggests to this observant writer that the US Government has legislated itself to be immune from all sorts of lawsuits … including Willard’s.


The court of appeals concluded that McKibbin had the discretion to set a backfire and therefore was immune even if he was negligent in doing so as the setting of the fire was indeed his discretion.

The court looked at whether there was immunity even if McKibbin lied to Willard about the protective measures he and his team would take in conducting the burnout. The FTCA exempts claims arising out of…misrepresentation or deceit. As such, Willard’s claim for misrepresentation by fire chief McKibbin was also immune. USFS and BLM off the hook.

Here’s to a healthy and happy New Year. See you next year.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at or

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