Exactly a year after a prescribed burn exploded into an out-of-control blaze, victims of the Lower North Fork fire are building a case against the state to prove that a pattern of gross negligence led to the deaths of three people and the loss of millions of dollars in property.
They point to previous prescribed burns in the same valley below Kuehster Road that escaped or reignited. They say two that occurred in March and October of 2011 should have signaled to the Colorado State Forest Service that burns in the Jefferson County neighborhood were terribly risky.
One, on March 2, 2011, resulted in eight spot fires near where the Lower North Fork fire started a year later.
The second, on Oct. 13, 2011, reignited in heavy winds two days later, and was in precisely the spot where the big wildfire began five months later.
Scott Appel made the initial 911 call when the October burn stoked up again. The escaped fire was contained to a half acre outside of the blackline — the term used for the process of establishing a perimeter for a prescribed burn.
“All they were doing is the blacklining, which is supposed to be intense scrutiny going over it. They leave it, and it’s not anybody from the Forest Service that finds it,” said Appel, whose wife, Ann, died in the Lower North Fork fire. “It’s not anybody from the fire department that finds it. It’s not the sheriff’s department that finds it. It’s a resident. It’s me, in this case.”
The Lower North Fork Fire Initial Attack Narrative, filed by North Fork Fire Department Chief Curt Rogers
, confirmed the big fire started in the same spot where the Oct. 13, 2011, burn reignited.
The escaped burns suggest a pattern of gross negligence that culminated in last spring’s deadly fire, say lawyers for victims of the Lower North Fork blaze, who are suing the Denver Water Board, the Colorado State Forest Service, the Colorado Department of Public Safety and seven other agencies and individuals.
The Forest Service, Denver Water and the Department of Public Safety declined to comment on the lawsuits.
Penelope Morgan, who teaches the prescribed burning laboratory class and heads the Wildland Land Fire Program at the University of Idaho, said small slop-overs are not uncommon. But they are cause for concern.
“Once fires have escaped, programs are often halted for months or years,” Morgan wrote in an e-mail. “Further, plans for future prescribed fires in the area are typically completed with extra attention, and sometimes with extra oversight.”
The March 22, 2012, burn that became the Lower North Fork fire was set by the Colorado State Forest Service doing watershed protection work on land owned by Denver Water.
Forecasts for March 22 were for temperatures in the 50s with wind gusts 7 to 15 mph. The fire, which had appropriate permits, was monitored by state Forest Service personnel for two days.
But then, on March 26, high temperatures and gusts up to 80 mph stoked the embers and drove a wall of flame toward the homes along Kuehster Road. In addition to Ann Appel, Sam and Linda “Moaneti” Lucas also were killed.
In the end, 27 houses were destroyed or damaged and about 1,400 acres of land were charred.
The state quickly took responsibility for the fire. Legislation was introduced to create a claims process by which victims could be compensated above the $600,000 per-incident cap set by the state Governmental Immunity Act. So far, 95 claims related to the fire have been filed, and damages being sought total $73 million.
But none of the victims has been paid by the state. The state Attorney General’s office is working with lawyers representing the victims to develop a case management plan to help determine how losses will be measured. Once the values are set, they will be forwarded on to the state claims board and then to the state legislature for payment.
In the meantime, lawyers have filed lawsuits they say will protect their clients if the settlements offered by the state are too low.
Tom Henderson, an attorney representing some of the fire victims, including Scott Appel and his sons, says establishing a pattern of gross, willful and wanton negligence by the state is the way plaintiffs will make their cases for claims of inverse condemnation.
While the state has admitted fault for the fire, it disputes claims that the fire resulted in government taking of property without compensation — or inverse condemnation.
Given the history of escaped burns in the area, the state should have been aware of the risk that the March 2012 burn posed, Henderson said. By going ahead with the fire, the state “took these peoples’ property.
“They took it by virtue of burning it to the ground, and the state has not offered fair and just compensation,” he said.
The inverse condemnation claims are without warrant, state Attorney General’s spokeswoman Carolyn Tyler, said in an e-mail.
Though he’s seen some encouraging signs that the case is beginning to move forward, Henderson expects that eventual compensation from the legislature will not be what his clients feel is fair.
Ross Eckel lives down Kuehster Road from where the Appel’s house used to stand. His home was not damaged, but its value and that of the land around it has fallen as a result of the charred landscape, he said.
He’s one of the residents involved in the litigation, and believes that while the process hasn’t been ideal, it hasn’t come as a surprise, either.
“We’ve only been in this for one year,” Eckel said. “Did we really expect that we would have everything resolved at this point? Realistically, no.
“We’re glad to see that some progress has been made,” he said, “and that we have not been swept under the rug on this by the state.”
But for Scott Appel, progress hasn’t moved quickly enough.
“The bottom line is if they wanted to take care of it, they could take care of it,” Appel said. “There’s no doubt in my mind.”
