Judge dismisses Carlton Complex lawsuit against DNR

OKANOGAN – In a seven-page decision handed down last Wednesday, Oct. 24, Okanogan County Superior Court judge Christopher Culp dismissed a lawsuit filed by more than 200 plaintiffs against the Department of Natural Resources (DNR) for damages caused by the 2014 Carlton Complex wildfire.
The hearing was held on Oct. 11 at the Okanogan County Courthouse. Representing the plaintiffs at the hearing was Alex Thomason of Thomason Law & Justice of Pateros and Seattle, and Jason Amala of Pfau Chochran Vertitis Amala in Seattle. The DNR was represented by Assistant Attorney General Patricia Fetterly, and attorneys Randy Gimple and Alexander Cheng.

At issue was common law versus state statue. DNR attorneys argued that under the mantle of the “public duty doctrine,” DNR is not liable for negligence because it is a state agency and has an obligation to the public in general and not to specific individuals.

Counsel for the plaintiff sought to hold DNR responsible as an individual landowner and like any other landowner, obligated to prevent fire from spreading to another owner’s property. Under that definition, counsel maintained that the plaintiff’s claims are not subject to the public duty doctrine.

In his opinion, Judge Culp stated “that defendant has no statutory or common law actionable duty to any of the plaintiffs, either in fire suppression responsibilities or as a landowner” because “there is no longer a statutory or common law duty to the individual plaintiffs…whether as a landowner or in fire suppression efforts. This was not always true.”

Culp referenced a 1990 case brought against the DNR wherein the state Legislature in Revised Code of Washington (RCW) 76.04 included the DNR in the landowner category. In that decision the court held “the DNR liable as a landowner under Washington’s statutory and common law…”

Culp said the Legislature revised 76.04 in 1993 and added a new section “and passed new legislation to effectively overturn that decision.”
Following Judge Culp’s ruling, Thomason offered a succinct analysis.

 “The court believed that the written statue eliminates all claims that are under the statue,” Thomason told the Quad. “Our claims are common law claims that are not under the statue.”

Thomason said he is filing a motion asking the judge to reconsider the Oct. 24 decision.

“If he doesn’t then we’ll have the Court of Appeals look at it,” Thomason said.

In the Oct. 11 hearing, both parties and the judge agreed that his decision warranted review and certification by the Court of Appeals.

The Carlton Complex wildfire started on July 14, 2014 and burned 256,108 acres over some 390 square miles after four smaller lightning-causes fires, the Golden Hike, Stokes, French Creek, and Cougar Flat, ignited on DNR land, combined and spread.

At that time the state’s largest wildfire, the Carlton Complex destroyed more than 300 homes, killed nearly 1,000 head of cattle, wiped out 500 miles of fence line, and consumed timber by the millions of board feet.

In mid-October of that year, Thomason filed the first $15 million in claims against the DNR on behalf of 65 landowners, the majority from Pateros and Brewster, who believed the state agency was negligent for its failure to contain the fires in their controllable early stages.

On the third anniversary of the Carlton Complex wildfire, the statutory deadline to file damages, Thomason filed on behalf of additional claimants bringing the total to more than 200 landowners who joined the lawsuit.