Nev. attorney general wants judge to dismiss Washoe fire lawsuits
April 8, 2017
RENO — Nevada's chief legal adviser wants a judge to dismiss all but a narrow piece of a series of lawsuits accusing state forestry officials of mishandling a prescribed burn that turned into a raging wildfire and destroyed 23 homes along the edge of the Sierra.
The homeowners say they suffered more than $80 million in damages in the fall blaze. They contend the government illegally took over their property and left it "valueless and virtually unusable."
Officials with the Division of Forestry "breached their duty by negligently, carelessly and recklessly failing to operate, manage and supervise the prescribed burn," according to each of five lawsuits filed in the past two months by a total of 38 plaintiffs.
Nevada Attorney General Adam Laxalt and his deputy attorneys said in a motion this week that the homeowners may be entitled to some compensation for unintentional damage. But they argue the state judge should dismiss all claims related to property rights or the "takings" clause of the Fifth Amendment to the U.S. Constitution.
The fire "was a tragedy, but not a taking of private property for a public use," said Steve Shevorski, Laxalt's head of complex litigation. "At most," he wrote, the homeowners suffered an "accidental injury to their property."
Nevada State Forester Joe Freeland resigned earlier this month after an independent investigation into the handling of the wildfire in Washoe Valley north of Carson City concluded in February that state crews were understaffed in their manning of the smoldering burn despite repeated warnings about unstable, windy weather.
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The lawsuits say crews started the burn Oct. 4 despite a storm with wind gusts in excess of 80 mph that was forecast to roll in Oct. 7.
The operation was suspended Oct. 7 as the weather worsened, and crews thought the smoldering fire had safely been extinguished. But on Oct. 14, high winds carried rekindled embers along the Carson Range and ignited the catastrophic wildfire.
Kenneth Lyon, a Reno lawyer for the plaintiffs, said forestry officials "knew or should have known" the area had suffered through severe drought and was prone to high winds "causing a substantial risk of losing control over the controlled fire" and creating a danger to neighboring property.
William Jeanney, another Reno lawyer who filed the first suit on behalf of a homeowner in February, said the Nevada Constitution protects residents against forms of government condemnation of private property "taken or damaged for a public use" without just compensation.
The prescribed burn was intended to reduce fuel loads and ease future fire risks for the benefit of the public, he said, alleging the state's actions constitute a physical invasion of the homeowners' property.
"The exorbitant amount of interference … amounts to a taking," he wrote.
Laxalt argues the U.S. Supreme Court has always distinguished between "intentional government conduct resulting in a taking and unintentional injuries to property."
"Contrary to plaintiffs theory, the state government does not 'take' property if it damages it," Shevorski wrote on the state's behalf.
He contrasted it to past cases where a taking was found to have occurred, such as when the U.S. Supreme Court ruled for Pewee Coal in 1951 after the government occupied and took over the operation of a coal mine to prevent a strike "as though the government held full title to the property."
Nor was there any physical invasion like Nevada Supreme Court ruled in 2006 in a case dating to the 1990s when Clark County reserved permanent airspace over land for flights in and out of the Las Vegas airport, he said.
"The plaintiffs' property was not subject to a government regulation at all, let alone one so onerous that they were constructively ousted from their property," Shevorski said. "There was no regulatory taking."