Judge: U.S. Forest Service did not cause 2003 Cedar fire

By: SCOTT MARSHALL - Staff Writer
Ruling means government does not have to pay homeowners for damaged property | Monday, November 5, 2007 10:26 PM PST ∞

NORTH COUNTY -- One of two federal class-action lawsuits local residents have filed against the U.S. government in connection with the deadly 2003 Cedar fire was dismissed last week when a judge ruled the U.S. Forest Service's land management policies did not cause the blaze.

The residents alleged that the Forest Service, which suppressed most fires and allowed activities that posed fire hazards, including hunting, helped set the stage for the deadly fire.

Mark Grotefeld, the Chicago-based attorney for the homeowners who filed the lawsuit, said Monday that he intends to appeal the judge's ruling.

"There's very little law on this subject," Grotefeld said. "To some extent, we're going into uncharted territory."

Heide Herrmann, the Justice Department attorney who represented the government, referred questions to a department spokesman. An official with the Justice Department's public affairs office said in an e-mail that he could not comment on the case because it is ongoing.

Ignited Oct. 25, 2003, by a lost hunter setting a signal fire in the Cleveland National Forest, the Cedar fire burned more than 270,000 acres, destroyed more than 2,200 homes and claimed the lives of 14 people. The blaze stretched from Ramona and Julian to Interstates 8 and 15 and included portions of Poway and Scripps Ranch.

In a five-page written ruling filed Friday, Senior Judge John P. Wiese of the U.S. Court of Federal Claims in Washington, D.C., wrote that the government could not be deemed a cause of the fire unless the hunter was acting as an agent of the government.

"The government did not cause the Cedar fire," Wiese wrote. "Rather, as the facts demonstrate, a hunter started the fire."

A group of 15 homeowners whose properties were damaged or destroyed in the Cedar fire filed two lawsuits against the federal government based on different legal principles in connection with the fire.

In a so-called "inverse condemnation" case filed in Washington, the homeowners alleged that the forest service's decades-long policies of suppressing all natural wildfires in the Cleveland National Forest created "a situation where a catastrophic fire escaping the (forest) and damaging homes in adjacent communities was inevitable." The forest service also encouraged recreational activities, including hunting, that heightened the risk of fires, the homeowners alleged.

The forest service policies were intended to benefit the general public by protecting timber, wildlife and recreational uses, but disrupted the "fire ecology" in the forest and increased the "fuel loads" for fires that would threaten adjacent properties, the homeowners alleged.

The homeowners alleged that the Cedar fire resulted from those policies, and that the government should compensate homeowners for the damage to their property.

The government argued in court documents that the forest service could not have foreseen that its policies would result in a lost hunter taking "the inadvisable and illegal step of setting a signal fire." The hunter was responsible for the fire, not the forest service, the government argued in court documents.

Wiese ruled that the government did not set in motion the actions that resulted in the damaged and destroyed property.

Wiese also wrote that the homeowners' arguments that forest service policies raised the risk of a major wildfire may be relevant to a different legal principle, which is the basis for a separate lawsuit the homeowners filed against the government in the U.S. District Court in San Diego.

In that case, homeowners allege government officials failed to stop the blaze in its early stages and should not have allowed hunting or other recreational uses of the Cleveland National Forest because an extreme fire hazard existed.

Attorneys for the government have asked the court in San Diego to dismiss that lawsuit. The government argues the United States cannot be held liable for claims challenging firefighters' decisions about how to fight a wildfire or challenging decisions to keep a forest open when high-fire hazard periods exist.

Grotefeld argued in court documents that the government can be found liable and that the government failed to follow laws, regulations and policies in its initial firefighting efforts and by allowing hunting at the forest that day.

Grotefeld also represented homeowners in a lawsuit filed in the Superior Court against the county and the state, but a judge dismissed that lawsuit in 2005.

-- Contact staff writer Scott Marshall at (760) 631-6623 or smarshall@nctimes.com.