This article by Alex Baumhardt was originally published in the Oregon Chronicle.

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A federal judge in Eugene has dismissed a timber company lawsuit against the U.S. Forest Service over its response to a destructive and deadly blaze that was part of the 2020 Labor Day Fires. 

U.S. District Judge Michael McShane on Dec. 6 dismissed the lawsuit brought by Freres timber companies in January against the agency. The lawsuit, which sought $33 million in damages, alleged the Forest Service was negligent in battling the Beachie Creek Fire in the Willamette National Forest. The complaint said officials did not put their full aerial firefighting arsenal or other resources to work in the first 14 days of the fire before it spread and became part of a complex of fires in the Santiam Canyon fueled by high winds and downed power lines. 

The Beachie Creek Fire ultimately spread over 193,000 acres, mostly in the Willamette National Forest, killed five people and destroyed dozens of homes in the towns of Detroit, Gates and Mill City. 

Lawyers for the Forest Service presented detailed evidence to the court that said that agency officials and firefighters followed directives to fully suppress the fire and that firefighters used their best judgement to do so. They said they deployed resources where and when it was appropriate, including dropping hundreds of thousands of gallons of water over the area via helicopter for months and dispatching a crew of smoke jumpers to parachute into the burning forest to try to suppress the fire. Ultimately, conditions were too difficult for the smokejumpers to land safely in the forest in the first few weeks of the fire, lawyers said, leaving the service to attempt to suppress it almost exclusively from the air in the first few weeks, and to pause water drops for a week due to dangerous flying conditions.

“It appears that the thrust of plaintiffs’ claims is not that the Forest Service’s response to the Beachie Creek Fire violated some mandatory policy; it is that the Forest Service’s response to the Beach Creek fire conflicted with plaintiffs’ vision of the best course of action,” Judge McShane wrote in his opinion.

Rob Freres, president of Freres Timber Inc. and Freres Lumber Co, said they would appeal McShane’s decision. The company claims it lost 7,000 acres of privately-owned forest in the fire, worth nearly $30 million, and that it lost $3 million in profits from trees it was slated to log in the Willamette National Forest but couldn’t because they burned. 

“Forest Service misconduct, negligence and failure to act is protected by this decision. Our purpose bringing this litigation was to change the Forest Service’s behavior toward extinguishing fire,” Freres told the Capital Chronicle in an emailed statement. 

The notion in the lawsuit that Freres holds more knowledge about fighting fires than the Forest Service was among the central issues McShane questioned. 

“Plaintiffs’ brief dedicates pages to explaining how, from their perspective, the Forest Service missed an opportunity to put out the fire in its early stages,” he wrote. “Plaintiffs may be right. But lacking the insight and expertise of the Forest Service, plaintiffs are ill-positioned to make that judgment call.”

Freres alleged the Forest Service ignored their directive to fully suppress the fire by not utilizing all aircraft and crews in the first few weeks of the blaze. But the judge ruled the Forest Service has the right to weigh risks, firefighter safety and the effectiveness of strategies in various weather conditions, and to make decisions about how to fight the fire and minimize harm. 

 “Not only is plaintiffs’ characterization of the decisions plainly wrong, but their insinuation that the Forest Service was ‘idle’ is dramatically unfair,” McShane wrote.