Case 2:22-cv-00002-JNP Document 2 Filed 01/03/22 PageID.

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Quentin M. Rhoades
RHOADES & ERICKSON PLLC
Montana State Bar No. 3969
430 Ryman Street
Missoula, Montana 59802
Telephone: (406) 721-9700
courtdocs@montanalawyer.com
Pro hac vice application pending

Bradley L. Booke #9984

P.O. Box 13160
Jackson, WY 83002
Telephone: 702-241-1631
brad.booke@lawbooke.com
Pro querente

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

STRAWBERRY WATER USERS

ASSOCIATION, Case No.: 2:22-cv-00002-JNP

Plaintiff,

v.
COMPLAINT
UNITED STATES OF AMERICA, AND
REQUEST FOR
Defendant. ADVISORY JURY TRIAL

Plaintiff Strawberry Water Users Association states for its Complaint against

Defendant United States of America as follows:

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INTRODUCTION

1. This is a civil action brought under 28 U.S.C. § 2671, et seq., the

Federal Tort Claims Act (FTCA), to obtain a money judgment in compensation for

negligence claims arising from Defendant United States of America’s response to

the Pole Creek and Bald Mountain Fires Fire on the Uinta-Wasatch-Cache National

Forests UWF South of Provo, Utah in August and September of 2018. In this case,

Defendant United States of America, acting through its agency, the United States

Department of Agriculture Forest Service (Forest Service) chose not to suppress the

Pole Creek and Bald Mountain Fires. It decided instead to use the fires the

achievement of resource benefits, resulting in substantial property damage and

special and general damages to Plaintiff SWUA.

2. This Forest Service decision to use the Pole Creek and Bald Mountain

Fires to achieve resource benefits violated federal policy, The use of unplanned fire

to achieve natural resource benefits, which consists of major federal action, is not

authorized by federal law because in deciding to use unplanned fire as a resource

management tool, the Forest Service did not adhere to the National Environmental

Policy Act, did not consult with the U.S. Fish and Wildlife Service under the

Endangered Species Act and did not harmonize the action with the applicable Forest
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Plan as required by the National Forest Management Act.

3. The Forest Service also employed firing operations that resulted in the

destruction of personal and real property owned by Plaintiff Strawberry Water Users

Association. The Forest Service had a duty to give correct information about the

status and fire fighting plans at the daily briefings and meetings with landowners.

Communications and daily briefings are informational in nature, not policy driven.

The Forest Service’s failure to give correct information to the Plaintiffs does not fall

under the discretionary function exception to the FTCA.

4. For these reasons, the discretionary function exception to the waiver of

immunity set forth in the FTCA does not apply and does not immunize the Forest

Service’s wrongful acts and omissions. Therefore, the Forest Service is liable to

compensate Plaintiffs for the personal injuries and property damage they suffered

due to the Forest Service’s negligent fire management decisions.

PARTIES

5. Plaintiff Strawberry Water Users Association (SWUA) is a duly

authorized operator of the Strawberry Valley Project which delivers water from

Strawberry Reservoir to individual shareholders in South Utah County. The

Strawberry Valley Project, part of Reclamation's Upper Colorado Region, is located

in Utah and Wasatch Counties, in central and eastern Utah respectively. The project
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is centered in Utah County near Spanish Fork, Utah, including the Spanish Fork

River. In Wasatch County the project includes Strawberry Dam and Reservoir,

located approximately 29 miles southeast of Provo. Wasatch County also includes

Indian Creek Dike, the Currant Creek Feeder Canal, Indian Creek Canal, Trail

Hollow Canal, Indian Creek Crossing Diversion Dam, and most of the Strawberry

Tunnel, that diverts water from Wasatch County to Utah County through Wasatch

Divide. The western most section of the Strawberry Tunnel was located in Utah

County. Utah County contains other major features of the Strawberry Valley Project

including the Strawberry Power Canal, the Springville-Mapleton Lateral, the Upper

Spanish Fork Powerplant, the Spanish Fork Diversion Dam, the Lower Spanish Fork

Powerplant, the Payson Powerplant, and the High Line Canal. Reclamation and the

Strawberry Water Users' Association built the project to irrigate greater amounts of

arable land in southern Utah Valley.

6. Defendant United States of America acted, at all times relevant to the

claims stated herein, through its agency, the United States Department of Agriculture

Forest Service (Defendant is referred to hereinafter as “the Forest Service”).

JURISDICTION AND VENUE

7. SWUA exhausted its administrative remedies, per 28 U.S.C. § 2675(a),

as SWUA timely submitted its claim to the relevant federal agency and the agency
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failed to act on SWUA’s administrative claim within six months of presentment.

SWUA’s claim is, therefore, ripe and justiciable.

8. The Court has subject matter jurisdiction over this FTCA Act civil

action pursuant to 28 U.S.C.A. § 1346(b)(1) because the action is on claims against

the Forest Service, for money damages for injury or loss of property and personal

injury caused by the negligent or wrongful act or omission of employees of the

Forest Service while acting within the scope of their office or employment, under

circumstances where the Forest Service, if a private person, would be liable to

Plaintiffs in accordance with the law of the State of Utah, the place where the act or

omission occurred.

9. The discretionary function exception to the FTCA does not apply

because the conduct at issue violated a federal statute, regulation, or policy and the

Forest Service has no rightful option but to adhere to the directive.

10. In addition, to the extent the Forest Service retained any discretion in

its decision making, in this case, that discretion was not made under or subject to

policy analysis. Because it does not include policy analysis, the failure to warn, in

this instance, is not subject to the discretionary function exception to the FTCA.

11. Venue in this Court is proper because all the activities that give rise to

the causes of action alleged and damages occurred in the State of Utah.
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THE POLE CREEK AND BALD MOUNTAIN FIRES

12. The Bald Mountain Fire was a wildfire started by lightning on August

24, 2018.

13. Three days later, the Forest Service published a Wildland Fire Decision

Support System (WFDSS) report explaining how the response to the Bald Mountain

Fire would proceed. The course of action recorded in WFDSS was to: “Allow fire

to burn to north, northeast and east. However, consider and allow suppression

actions on the southwest and southern boundaries to prevent fire from reaching

private lands and minimizing the need to close the Mona Pole Road. Fire behavior

may dictate a different outcome, but where management of the fire through

suppression or other tactics allow for steering the fire in the right direction,

implement those.”

14. Fire managers decided to take advantage of the Bald Mountain fire to

meet restoration and other resource benefit objectives.

15. The Pole Creek Fire was a wildfire started by lightning on September

6, 2018.

16. Fire managers similarly decided to use the Pole Creek Fire to pursue

and achieve resource management objectives.

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17. The two fires merged September 17, 2018. The Bald Mountain Fire

caused mandatory evacuation of two cities: Elk Ridge, Utah and Woodland Hills,

Utah. The Pole Creek Fire triggered mandatory evacuations for the Covered Bridge

Community of the Spanish Fork Canyon, Utah, along with the Diamond Fork

Canyon and Right Fork Hobble Creek Canyon areas.

18. On or about August 24, 2018, and again on or about September 6, 2018,

officers of the Forest Service made decision to allow the two wildfires to burn in

order to meet natural resource management objectives other than emergency fire

suppression. These officers and their leaders had physical control of two fires

immediately following their respective ignitions. Forest officers chose not to

suppress the fires, opting to “use unplanned fire in the right place at the right time”

to meet natural resource management objectives.

19. The Forest Service (Uinta-Wasatch-Cache Forests UWF) prepared a

formal Facilitated Learning Analysis (FLA) of the conduct of the fire fight, the

history of the fires, actions of Forest Service officers and leaders, and other relevant

information. Two versions of the document were prepared. The first was presented

to the National Interagency Fire Center in Boise, Idaho in January 2019. Alarmed

by the mistakes and unsupportable actions of numerous agency officers, senior

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leaders revised and scrubbed the public version of the FLA which was eventually

released to the public in the summer of 2019.

20. Forest Service officers damaged SWUA property interests by ignoring

weather forecasts and “red flag fire” danger warnings. They allowed the wildfires

to burn to meet public purposes of managing natural resources, and then failing to

heed warnings or take appropriate action to prevent damage from happening.

21. Forest Service officers ignited fires private and public property on

purpose while fighting the wildfire they caused. These burnouts, backburns, or

backfires often had no impact on the wildfire and many never reached the wildfire

perimeter.

22. The local Forest Service Forest Supervisor, who had no experience or

expertise managing complex fires, he ordered firefighters to leave the Pole Creek

Fire to burn on September 6, 2018, and countermanded fire orders of the chief fire

officer on the ground on September 10, 2018. By the time the fires were finally

controlled in October, they burned almost 100,000 acres of land.

23. The destruction included severe fire damage or post-fire flooding to

property interests downslope from the respective fires, some of which continues to

this day.

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24. The after-effects of these fires will plague local people, including

SWUA, over the next decade as burned drainages and soils unravel, causing flooding

and debris flows to damage roads and fences and deposit mud and debris on

highways, block culverts, ruin driveways, and create havoc across the area.

25. The fires and ensuing flooding heavily damaged both the water quantity

and quality of water delivered to SWUA users.

FIRST CLAIM FOR RELIEF: NEGLIGENCE

26. SWUA restates all of the foregoing allegations the same as if set forth

herein in full.

27. The Forest Service had a duty to exercise the degree of care which

should reasonably be expected of the ordinarily careful person under the same or

similar circumstances.

28. The Forest Service was negligent in that it breached its duty of care by

electing to use the Pole Creek and Bald Mountain Fires for resources management

purposes during a time of high fire danger and in failing to warn SWUA so that it

might take steps to mitigation its risk from the two fires. The Forest Service’s breach

of its duty of care caused SWUA to suffer injury to its real property interests. The

breach played a substantial part in bringing about damage to SWUA’s interests and

property, for which it bears legal responsibility to maintain and repair.

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29. SWUA is entitled to a money judgment against the Forest Service for

the full cost of repairing its real property interests in an amount to be determined at

trial.

SECOND CLAIM FOR RELIEF: TRESPASS

30. SWUA restates all of the foregoing allegations the same as if set forth

herein in full.

31. SWUA had an exclusive easement or possessory interests in the real

property described herein and the personal property stored on SWUA’s real

property.

32. The Forest Service’s resource management fires invaded the interests

of SWUA, described herein, and its physical condition, which invasion constitutes

trespass to real property.

33. The Forest Service’s trespass caused the SWUA to suffer damage to its

real property. The breach played a substantial part in bringing about damage to its

real property.

34. The real property damage SWUA suffered as a result of the Forest

Service’s trespass is the cost of repair or replacement and the loss of the use of such

property, in an amount to be determined at trial.

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35. SWUA is entitled to a money judgment against the Forest Service for

damage to real property in an amount to be determined at trial.

REQUEST FOR RELIEF

Accordingly, Plaintiff SWUA respectfully requests the Court enter its order

granting a money judgment against Defendant in such amount as Plaintiff shall prove

at the trial of this action:

1. To compensate Plaintiffs for the torts stated herein;

2. For attorney fees and costs as allowed by law; and

3. For such other and further relief as the Court may find appropriate in

the circumstances.

DATED this 31st day of December 2021.

Respectfully Submitted,
RHOADES SIEFERT & ERICKSON PLLC

By: /s/ Quentin M. Rhoades

Quentin M. Rhoades
Applicant Pro Hac Vice

By: /s/ Bradley L. Booke

Bradley L. Booke
Pro Querente

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REQUEST FOR ADVISORY JURY

Acknowledging that they are not entitled to a jury trial under the claims

alleged herein, Plaintiffs respectfully request the Court to impanel an advisory jury

in the exercise of its discretion.

DATED this 31st day of December 2021.

Respectfully Submitted,
RHOADES SIEFERT & ERICKSON PLLC

By: /s/ Quentin M. Rhoades

Quentin M. Rhoades
Applicant Pro Hac Vice

By: /s/ Bradley L. Booke

Bradley L. Booke
Pro Querente

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