Property owners fault U.S. firefighters for burned cabins and land

2014-01-14T00:00:00Z Property owners fault U.S. firefighters for burned cabins and landBy Tom Beal Arizona Daily Star Arizona Daily Star

An attorney for two Oracle-area landowners argued in federal court Monday that they should be compensated by the federal government for land and cabins burned in the Bullock Fire more than 11 years ago.

Attorney John Munger, who represents property owners Gregory and Victoria Green and Starr DeVarona and John Ervin, argued that their properties burned as a result of a “backfire” set without notification to his clients by the U.S. Forest Service-led team battling the blaze.

Assistant U.S. Attorney Charles Davis told U.S. District Judge Cindy K. Jorgenson that the fire that burned three cabins on 48 acres of private land on the north slopes of Mount Lemmon came from the main front of the Bullock Fire and not from any back-burning operations.

The Bullock Fire raged across 30,000 acres on the north side of the Santa Catalina Mountains in May and June of 2002. A federal intra-agency fire team managed to stop it before it burned across the Catalina Highway into the village of Summerhaven.

That village was destroyed in the larger Aspen Fire a year later.

Jorgenson had initially rejected the claims in 2008, saying the government had immunity under an exception to the Federal Tort Claims Act that shields it from liability for actions that are “susceptible to a policy analysis grounded in social, economic or political concerns.”

The U.S. District Court of Appeals for the 9th Circuit overturned that ruling, sending it back to the district court on the question of whether the government’s failure to notify the property owners deprived them of an option to try to protect the property themselves.

The appeals court found that “if the Appellants had been notified of the proposed backfire, they might have been able to take measures to protect their properties, or at least ensured the Forest Service took measures to do so.”

DeVarona testified during the trial in December that her property, reached via the primitive Control Road that connects Oracle with the Catalina Highway atop Mount Lemmon, could have been protected if she had been notified.

Nearby mine owners and ranchers in the area could have brought heavy equipment to build fire breaks, she said.

DeVarona owns 28 acres, which included a Boy Scout cabin built in the 1940s and two outbuildings. All burned during the fire.

The Greens bought 20 acres from DeVarona in 1991, including an adobe structure with a metal roof that survived the fire. Two furnished cabins on the property burned.

Green said he and his family used the cabins as a vacation retreat.

During the trial, firefighters and experts called by the government testified that the fire that burned through the private property came from the main fire front.

An expert witness for the plaintiffs testified that it resulted from a backburn that got away.

Davis asked the judge to reject the claims, saying the plaintiffs should have known that backfires were being set near their property from media accounts and other information put out by the information arm of the Type 1 team fighting the fire.

In addition, said Davis, Green and DeVarona could not have stopped the fire from burning their buildings. They burned on a day of red-flag conditions that included 43-mph winds that fanned a towering column of flame, smoke and ash.

And Davis disputed Munger’s contention that the backburn was the cause of the destruction.

Munger told the judge that fire managers had personal and professional reasons for not wanting to admit that their “backfire burned my clients’ properties.”

“The government created the situation and the government owed my clients a warning and the opportunity to fix their properties,” Munger said.

Judge Jorgenson took the matter under advisement. Attorneys said they did not expect a quick ruling.

If the claims are upheld, a separate trial will determine damages.

Contact reporter Tom Beal at tbeal@azstarnet.com or 573-4158.

Copyright 2014 Arizona Daily Star. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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