On June 27, 2000, an automobile crash on Washington State Route 24 resulted in a wildland fire, designated the 24 Command Fire. It burned for several days, and by the time that it was extinguished, it had burned some 164,000 acres of public and private lands on and near the U.S. Department of Energy's Hanford site. Included within the site is the 120-square-mile Fitzner-Eberhardt Arid Lands Ecology Reserve, an ecologically sensitive area with significant natural and cultural resources. The fire quickly spread to the reserve, causing significant damage.

Ultimately, numerous individual and corporate fire victims brought suit against the United States of America, the DOE and the Department of the Interior, as well against the State of Washington. Their claim alleged, among other things, that the defendants were negligent in not maintaining firebreaks that might have prevented the fire from spreading from the highway to the natural vegetation on the reserve. The plaintiffs sought damages in excess of $100 million, which gives one some idea of the magnitude of the fire.

When the U.S. District Court for the Eastern District of Washington dismissed the complaint, the plaintiffs appealed to the U.S. Court of Appeals for the Ninth District in Autery v. United States, No. 04-35105, United States Court of Appeals for the Ninth Circuit (2005). The ultimate issue in the case was whether the plaintiffs' suit was barred by the independent-contractor exception to the Federal Tort Claims Act.

In June 1997, the DOE began transferring management of the ALE to the U.S. Fish and Wildlife Service, or FWS. On June 20, 1997, the terms of this transfer were set forth in a permit and memorandum of understanding between these entities. At that time, the DOE had a large (over $2.8 billion) contract with Fluor, a private company, for “planning, managing, and integrating, operating and implementing” a wide range of activities at the Hanford site. In turn, Fluor subcontracted with DynCorp to provide certain services, including “Emergency Services.” Those services were actually to be provided by the Hanford Fire Department, a subsidiary of DynCorp, thus a private entity.

The Hanford site and the reserve had a history of wildfires. The 200,000-acre Hanford Range Fire occurred in 1984 and led to much discussion and direction about establishing and maintaining firebreaks along roadways at the Hanford site. Since 1985, and prior to the 24 Command Fire, maintenance of firebreaks along the reserve roadways, and State Route 24 in particular, was complicated by a number of factors.

State Route 24 is located on an easement over federal property granted by the United States to the State of Washington. When the DOE granted the easement for the road in 1985, it provided that “the [State of Washington] shall maintain the property in good condition and make necessary repairs.”

Over the years, firebreak maintenance near State Route 24 on the reserve borders was done in several ways: “discing,” which involved “turning over the earth using machinery to break up vegetation;” spraying herbicide; mowing vegetation; and performing controlled burns of vegetation and vagrant tumbleweeds. Discing, however, creates dust. In 1994, either Washington State or Benton County clean-air authorities notified the HFD and the DOE that, as a matter of state law, landowners must take reasonable precautions to prevent “fugitive dust.” Thus, in 1995, discing on the reserve stopped. Maintenance of firebreaks shifted to the application of herbicide on the easement.

Either Washington State or Benton County also regulated the burning of tumbleweeds, thus the last “controlled burn” before the 24 Command Fire occurred in 1995. Consequently, after 1995 and before the 1997 agreement transferring management from the DOE to the FWS, neither agency nor the HFD actually “maintained” firebreaks on the reserve near State Route 24, at least not by discing or by controlled burns. Such maintenance was done, if at all, by the State of Washington on its easement, and consisted of spraying herbicides, perhaps some controlled burning, and mowing vegetation.

These limitations on firebreak maintenance near state roads, whether real or self-imposed, were apparently a source of frustration for some in the DOE and the Hanford Fire Department. In an internal e-mail of May 2000, only a month before the 24 Command Fire, the DOE's fire protection engineer for the Hanford site pointed out that no controlled burns had been performed in the past few years due to environmentalist concerns and enforcement actions. He said that all that had occurred was to spray an herbicide to kill off the weeds in their early growth, which had a very limited effect. He predicted that because the wildland fuel growth along natural and manmade firebreaks like roadways had not been managed, a wildland fire similar in size to the 1984 Hanford Range Fire would occur in the near future.

The record also indicates that in June 2000, a moratorium was placed restricting or halting the use of controlled burns on DOE lands after such a burn led to a large uncontrolled wildfire in the Southwest. The record presumably refers to the Cerro Grande Fire.

The Federal Tort Claims Act creates a limited waiver of sovereign immunity by the United States, providing that the United States is liable to the same extent as a private party for certain torts of federal employees acting within the scope of their employment, “in accordance with the law of the place where the act or omission occurred.” The act includes officers and employees of “any federal agency,” but it expressly excludes “any contractor with the United States.” The Court of Appeals observed that the critical test for distinguishing an agent from a contractor is the existence of federal authority to control and supervise the contractor's “detailed physical performance” and “day to day operations.”

The appellate court said that contractual provisions directing detailed performance generally do not destroy the contractor exception. The United States may “fix specific and precise conditions to implement federal objectives” without becoming liable for an independent contractor's negligence. Standards that are designed to secure federal safety objectives also don't convert the agent into an employee. Detailed regulations and inspections are not evidence of an employee relationship. The ability to compel compliance with federal regulations does not change a contractor's personnel into federal employees. Rather, there must be substantial supervision over the day-to-day operations of the contractor to find that the individual was acting as a government employee.

Applying these standards, the Court of Appeals noted that the plaintiffs could not dispute that Fluor, DynCorp and the Hanford Fire Department were government contractors. Moreover, all indications were that the government did not direct the actual performance of the contract (how to fight the fires, how to disc the soils or how to conduct a controlled burn). The plaintiffs did not argue, and their complaint did not allege, that the government supervised or directed day-to-day operations of the HFD as to maintaining firebreaks on the reserve near State Route 24 so as to render any HFD employee a de facto government employee.

Rather, the plaintiffs contended that, at least after the 1997 MOU, there was no contractual provision at all specifically for fire prevention or firebreak maintenance on the reserve. They said that by its terms, the MOU gave responsibility for “fire protection” to the FWS, even though the transition of lands was not yet complete.

The Court of Appeals went on to say that the problem with the plaintiffs' argument was that the DOE contract with Fluor and Fluor's subcontract with the HFD were still in place. The MOU between the DOE and the FWS, even if it changed responsibility for management of the reserve, did not change those contracts. The continuation of the contracts indicated that the DOE had still delegated the same responsibilities to its contractors, even after the management change.

The plaintiffs responded, however, by arguing that the subsequent notification letters to Fluor and the HFD that both should “continue to provide fire protection services … to the [reserve] on a cost reimbursable basis” after the management change also indicated that the FWS (or the DOE) would now be responsible for other fire prevention and maintenance. Their position rested on the proposition that after the MOU, there was no longer a contractual provision in place between the DOE and Fluor or the HFD regarding fire prevention.

The Court of Appeals said that it was plain that “fire prevention” and “fire protection system … maintenance” were included within the terms of the relevant contracts. It held that even assuming that there was a specific requirement or expectation that firebreaks in particular would be maintained, such maintenance fits squarely within the contractual responsibilities. Further, contrary to the plaintiffs' position, the MOU between the DOE and the FWS did not alter the terms and obligations of Fluor and its contract with the DOE, or of DynCorp (operating through the HFD) in its corresponding subcontract with Fluor. Thus, the independent-contractor exception to the act applied.

The Court of Appeals concluded that it did not have to decide if the plaintiffs' theory of negligence, premised on an alleged failure to maintain firebreaks along State Route 24, would prevail, or whether the government's argument that there was no duty of a landowner as a matter of law specifically to use firebreaks in all circumstances would carry the day. It said that it did not reach that issue because the contractual provisions plainly provided that “fire prevention” was delegated by the DOE and the FWS to contractors. Those contracts necessarily encompassed decisions about firebreaks as well.

The court then ruled that fire protection and fire prevention were contracted by the government to Fluor, and in turn by Fluor to the HFD. Those contracts included no duties, if any, regarding firebreaks. The 1997 management transfer of the ALE from the DOE to the FWS did not modify those contracts. The independent-contractor exception thus barred this suit against the United States.

Some points to ponder are:

• It's possible for a governmental entity to retain its immunity when contracting with private parties, but it is important to have a contract that clearly defines the duties of the respective parties.
• It's important to understand the distinction between being an employee and an independent-contractor.
• It's possible to shift from the classification of independent-contractor to that of employee when supervision changes to the oversight of day-to-day operations.

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Philip C. Stittleburg, MIFireE, is a Wisconsin attorney who has been chief of the La Farge (Wis.) Fire Department since 1977. He has been legal counsel for the Wisconsin State Fire Fighters Association, legal counsel and Wisconsin director for the National Volunteer Fire Council Inc., president of the NVFC Foundation, and current NVFC chair. Stittleburg sits on the NFPA board of directors and has served on the committee for NFPA 1500.