High court ruling allows victims of Big Lake fire to sue state

Posted: Sunday, July 15, 2001

ANCHORAGE -- The Alaska Supreme Court has reversed a lower court's ruling that prevented people who lost homes and property in the 1996 Big Lake fire from suing the state.

The high court ruled that Anchorage Superior Court Judge John Reese erred in deciding the state Division of Forestry was immune from claims that it was negligent in failing to control the fire in its early stages. Reese dismissed a lawsuit in September 1999.

The suit, filed on behalf of 16 Big Lake property owners, claims the state should have been able to stop the fire before winds whipped a smoldering 60-acre blaze into an inferno that eventually burned 37,000 acres and destroyed nearly 500 buildings.

Friday's decision, written by Chief Justice Dana Fabe, rejects the state's argument that all possible decisions made by the Division of Forestry are subject to immunity.

"This would be a radical step that is not consistent with our past decisions or any other authorities," Fabe wrote.

Fabe, along with justices Warren Matthews and Walter Carpeneti, said Reese must examine individually each claim against the state to determine if the decisions made were "operational," which means implementing existing policy, or "planning," which involves policy formulation.

Justice Robert Eastaugh and Alex Bryner didn't participate in the case.

Only policy-making actions are entitled to immunity as discretionary functions under the state's sovereign immunity law, the justices ruled.

The homeowners claim the forestry division allowed personnel to work while under the influence of drugs and alcohol, that the division didn't try to fight the fire during the night of June 2, when it began, and morning of June 3, when it blew up; that it failed to construct a fire line; used inadequate equipment; failed to "mop up" the original fire; started a "burnout" fire in the wrong place; and failed to post enough lookouts to monitor the fire.

At least some of those allegations "appear to concern non-immune operational activities," the high court said.

Two reports following the fire -- an internal study and an independent review -- found forestry officials did an adequate and proper job fighting the fire.

The suit was one of two filed and dismissed in 1999 as a result of the Big Lake fire. The other, filed on behalf of 600 people and dismissed by Superior Court Judge Beverly Cutler, is also on appeal to the Supreme Court.

Friday's decision affects both cases, said attorney Dan Hickey, whose firm filed both suits. The arguments are almost identical, he said, but the pending case has been certified as a class-action suit. The state has appealed that certification.

Assistant attorney general William Morse said state attorneys were disappointed in Friday's decision, but confident that the Division of Forestry eventually will prevail.

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