On March 17, 2020, a Washington State Court of Appeals addressed the Washington Department of Natural Resources’ (DNR) roles as a landowner and a fire suppression agency in light of the enactment of RCW 76.04.016. See Schulz v. State, No. 36453-4-III. 

Plaintiffs sought to recover for property damaged by the 2014 Carlton Complex fire. The Carlton Complex fire resulted from a combination of four fires in south Okanogan County, burning over 250,000 acres by the time authorities extinguished the fire. 

Plaintiffs filed suit in November 2015, alleging common-law negligence and violations of statutory duties outlined in chapter 76.04 RCW. DNR moved for summary judgment, requesting dismissal of the complaints arguing that the “legislature’s 1993 enactment of RCW 76.04.016 statutorily brought negligent firefighting…squarely into the public duty doctrine.” The trial court granted DNR’s summary judgment motion. 

The legislature enacted RCW 76.04.016 to identify DNR’s fire prevention and suppression capacity. The statute provides that when DNR acts in its statutory capacity as a fire prevention and suppression agency, it is carrying out duties owed to the general public. In the present case, the court assessed “whether claims for relief that the plaintiffs predicate on an alleged breach of DNR’s duties as a landowner, but that in fact depend on duties DNR owes only in its capacity as a fire suppression agency, can survive summary judgment[.]”

On appeal, the plaintiffs maintained that DNR was negligent in its efforts to suppress wildfires, which resulted in the spread of fires from DNR-managed land to neighboring properties. Plaintiffs relied on the Washington Supreme Court Oberg v. Department of Natural Resources, 114 Wn.2d 278, 787 P.2d 918 (1990) decision, arguing that it “expressly maintained DNR’s long-standing duties and liabilities as a landowner.” DNR disagreed, arguing that RCW 76.04.016 applies whenever it acts within its fire suppression capacity, whether on private land or land managed by DNR in its proprietary capacity.

The court’s analysis focused on three things: 

• The Oberg decision. The court began its analysis by noting the lack of clarity regarding the facts and allegations in the Oberg decision. It noted that the Oberg court concluded that it would be prudent for the legislature to clearly separate DNR’s duties as a landowner and as a firefighter. The court held that Oberg did not suggest that DNR’s duty as a landowner is identical to its duty as a fire suppression agency. Instead, Division Three found that the Oberg decision recognized that “DNR’s statutory and common law duty as a landowner [ ] is to use due care to prevent the spread of fire from its land.”
• Landowner liability. The court analyzed whether DNR owed the plaintiffs a duty as a landowner. It found no evidence of a breach of duty of DNR’s landowner duty. Instead, the court concluded that it only found allegations that “DNR committed negligence in protecting or suppressing fire in the forest protection zones for which it is responsible as a fire suppression agency.” As a result, the court found no issue of fact of landowner liability.
• RCW 76.04.016 and the Public Duty Doctrine. The court stated that analysis of RCW 76.04.016 shows that the legislature brought DNR’s firefighting capacity clearly within the public duty doctrine. It also indicates that the legislature recognizes that DNR acts in different capacities in which it has different duties. The statute’s plain language shows that the public duty doctrine applies to DNR when DNR acts, in good faith, in its statutory capacity as a fire prevention and suppression agency.

The court concluded that summary judgment in favor of DNR was appropriate because Plaintiffs did not present evidence of DNR’s breach of a landowner duty. The court’s opinion recognized the distinction between DNR’s role and associated duties as a landowner, and its role as a fire suppression agency contained within RCW 76.04.016. 

Under this ruling, when DNR acts, in good faith, as a fire suppression agency, its actions are covered by the public duty doctrine. This narrows the number of allowable claims brought against DNR for actions taken as a fire suppression agency.

Beveridge & Diamond's Natural Resources and Federal Lands practice group counsels clients on resource and project development on federally-managed and private lands, regulatory enforcement, and litigation. For more information, please contact the author.