ALBUQUERQUE (LN) — U.S. District Judge William P. Johnson granted in part and denied in part a motion by the United States to dismiss negligence claims under the Federal Tort Claims Act, finding that some allegations survive the discretionary function exception while others fall within its protection.
The Pino West Prescribed Burn, ignited in the Santa Fe National Forest between January 19 and February 19, 2022, escaped containment on April 22, 2022, becoming the Cerro Pelado Fire. The fire burned approximately 46,000 acres before it was extinguished on June 15, 2022.
Plaintiffs — the Pueblo of Jemez, Jemez Mountains Electric Cooperative, TC Company, and individual property owners — alleged that the U.S. Forest Service failed to monitor weather conditions and burn pile consumption after ignition, and that mandatory contingency resources were not maintained as required under the Pino West Prescribed Burn Plan.
The court found that the Burn Plan’s requirements that the Burn Boss monitor weather conditions for days following ignition, conduct visual monitoring of burn piles, and maintain adequate patrol by fire red-carded personnel are mandatory directives that do not permit discretion to forgo monitoring until an emergent risk is identified.
The Burn Plan also specified minimum contingency resources — one Type 6 Engine or three red-carded personnel — required to be available to deploy if prescription parameters were exceeded or anticipated to be exceeded. The court found that while the Burn Plan may permit discretion in how such resources are deployed, their availability is not optional.
The United States argued that the discretionary function exception bars all claims, pointing to Tenth Circuit precedent recognizing substantial federal discretion in wildfire management decisions. The court declined to adopt what it characterized as the government’s broader reading, distinguishing the cited cases as involving responses to naturally ignited or third-party-caused fires rather than a prescribed burn the government deliberately set.
The court rejected plaintiffs’ argument that the Prescribed Burn Approval Act eliminates agency discretion once a prescribed burn evades prescription. The Act prohibits authorization of prescribed burns under certain conditions but does not prescribe a mandatory course of action after approval.
The court granted dismissal of claims alleging the Burn Boss should have declared wildfire when the prescribed burn escaped containment, finding that the Burn Plan’s use of the word “can” rather than “shall” connotes discretion rather than obligation. The allocation of firefighting resources in times of high demand constitutes quintessentially discretionary policy judgment, the court held.
Claims based on the Burn Plan’s Holding Plan element — which outlines resources and actions needed to keep the fire contained — were also dismissed. The court found that determining patrol status and frequency involves inherently discretionary decisions balancing competing agency priorities.
The case will proceed on claims alleging failures in monitoring and contingency resource maintenance.