Wildfire Liability and the Federal Government: A Double-Edged Sword

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Charles H. Oldham.

Wildland-Urban Interface (“WUI”) represents a growing phenomenon where urban population areas are encroaching upon America’s wildlands, which are defined as natural environments on Earth that have not been significantly modified by civilized human activity. In 2008, there were approximately 115 million single-family homes in the U.S., and roughly 40% of those homes were located in a WUI area. Americans built approximately 17 million new homes between 1990 and 2008, and 10 million of those homes were built in or around a WUI area. As a natural consequence of the growing WUI, the number of structures destroyed by wildfire per year has almost tripled since the 1990s. Moreover, “[b]etween 1990 and 2013, wildfires claimed an average of 18 lives per year, but in 2013 the death toll spiked to 34.” In 2015, it is expected that wildfire losses will exceed $1.75 billion.

The growing Wildland-Urban Interface, with the attendant increase in wildfires, comes with a broad spectrum of consequences. For example, as discussed below, the federal government has seen an increase in the number of and the amount of claims for damages resulting from wildfires on federal land. This liability can emanate from such events as uncontrolled burns, forest thinning policies, and accidental fires. Indeed, as a result of the increased number of wildfires affecting urban areas, claims that once would have settled are being fully litigated because they have become so expensive. The federal government, on the other hand, is also contributing to the growth in liability for wildfires. Not only has the federal government increased its efforts to hold parties civilly liable for damage to federal lands caused by wildfires, it has also sought to impose criminal liability on those fighting the fires.

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