Comparing the state’s firefighting actions to “Keystone Cops,’’ the attorney for Yarnell residents who lost their homes in the 2013 blaze wants the Court of Appeals to let them sue the state.
At a hearing Wednesday, David Abney acknowledged it may be an open question of whether the Forestry Division, which was initially battling the fire on state land, had an obligation to protect the residents of the community.
But Abney said the agency, which was coordinating various local, state and federal efforts, voluntarily took on that duty. And having done that, he told the judges, it had an obligation to do it right.
Abney’s arguments have so far failed to get his clients their day in court.
Last year, Maricopa County Superior Court Judge Richard Gama threw out their lawsuits. He concluded that the state, in fighting the fire on public lands, had no duty to specifically protect Yarnell residents and their property.
On Wednesday, attorney Brock Heathcotte, who represents the state, asked the appellate judges to uphold Gama’s ruling. He said the state cannot protect everyone who chooses to live adjacent to the state-owned wilderness.
“But the risk can be spread to the people who choose to live in the urban-wilderness interface,’’ he said.
“They have the ability to form fire districts to protect their homes,’’ Heathcotte told the judges. “They have the ability to insure their homes. They certainly have the ability to fireproof their homes.’’
Abney did not dispute any of that.
“If the state had not been there, then the people of Yarnell would have taken extensive measures to protect themselves,’’ he said, things like emergency removal of rubbish, soaking the ground with water, and removing portable propane tanks “which exploded and spread the fire.’’
But he said that the residents were entitled to rely on the state’s assurance it would fight the fire and protect Yarnell — and that it would do it competently.
“If they had known that the state, all this flurry of activity by the state, was simply just nonsense, Keystone Cops instead of actual acts to protect them, they would have cleared out of there and, I’m sure, some of them would have stayed and fought to the end to protect their property,’’ he told the judges.
The fire that started with a lightning strike on state land destroyed more than 120 homes and resulted in the deaths of 19 firefighters.
Abney said there’s plenty of evidence that the Forestry Division botched the job — evidence he will get to present to a jury only if Gama’s decision is overturned.
Under questioning from Judge Peter Swann, Abney conceded that the state is not required to have unlimited resources to be able to protect all people, all property and the wildlands from all risk. But he said there is an obligation to manage the existing resources in a way that is not negligent, “which is what the state completely failed to do here.’’
“Quite frankly, it’s a miracle that no civilians were killed in all of this, with the late evacuation and the fire moving as fast as it was toward the end, all of which we alleged was predictable,’’ Abney said.
“Every day they had the same wind and weather pattern,’’ he explained, blowing away from Yarnell in the morning and toward the community in the afternoon.
“You could set a clock by it,’’ Abney said. “So why the state didn’t take advantage of the weather conditions and do some burn-outs in the morning and protect the community and its people and its structures is just beyond belief.’’
This litigation is separate from lawsuits filed by families of the Granite Mountain Hotshots. It was settled last year for just $50,000 for each of the 12 families who sued; the original claim was for $220 million.
But family members said that lawsuit was never about the money but instead learning what happened and ensuring there is not a repeat. Several of the families put what they got into a special fund to conduct independent investigations on fatalities, injuries, equipment and technology in wildland fires.
Part of that deal included the Industrial Commission, responsible for investigating workplace safety deaths and injuries, dropping the maximum permissible $559,000 penalty it had imposed on the Forestry Division, a penalty the state had challenged.
The settlement reduced that by $70,000 — $10,000 for each of the seven families who did not sue. It also canceled the hearing that had been set to determine whether violations of safety regulations led to the firefighters’ deaths.
In levying the maximum penalty in late 2013, commission members said they found two serious violations of worker safety regulations.
One is that at the time of the blaze, the state agency had vacancies in the positions of both safety officer and the planning section chief. Marshall Krotenberg, the lead investigator for the commission’s Division of Occupational Safety and Health said that meant no one was available to pay attention primarily to the safety of the firefighters versus simply battling the blaze.
Commission members also said there was a failure to properly plan how to battle the blaze, especially after initial efforts at suppression failed.
But the most egregious violation, Krotenberg said, essentially came down to the Forestry Division having the wrong priorities.
“Folks were put in positions, overly hazardous positions, to protect property that was unprotectable under the current conditions of the extreme fuel, dryness, the drought and wind conditions,’’ he told the commission. “The employer implemented (fire) suppression strategies that prioritized protection of nondefensible structures and pastureland over firefighter safety.’’