Feds say to throw out Gatlinburg wildfire lawsuit
Firefighters need the freedom to make spot decisions without fear of being second-guessed later, even when mistakes cost lives — which means survivors of the Gatlinburg wildfires have no right to sue for damages, according to National Park Service lawyers.
“The issue … is not whether park service officials made the best choices,” attorney Debra Coletti wrote in a motion filed this week in U.S. District Court. “Making decisions in fighting a wildfire require(s) the weighing of costs, benefits and alternatives. … The existence of myriad acts of discretion … bars plaintiffs’ lawsuit.”
The lawsuit — filed by attorneys Sidney Gilreath and Gordon Ball on behalf of Michael Reed, who lost his wife and two daughters in the wildfire, and James England, who lost his home in the blaze — blames Great Smoky Mountains National Park rangers for allowing a small mountaintop fire to explode into a firestorm that swept through Gatlinburg and surrounding communities the night of Nov. 28, 2016.
Another 210 property owners have filed two similar lawsuits.
The fire, labeled Tennessee’s worst in a century by authorities, began the day before Thanksgiving on the Chimney Tops peak inside the park. Fire crews tried to contain the blaze rather than fight it, and the flames, driven by high-speed winds, ultimately spread to more than 17,000 acres, killed 14 people and damaged or destroyed more than 2,500 homes and businesses. The lawsuits seek a total of $120.3 million in damages.
The lawsuits cite two after-action reports — one by a park service review team and another by an outside consultant, ABS Consulting — that faulted the park’s response to the fire as casual, shortsighted and bungled.
The park’s fire management officer, Greg Salansky, and other officials ignored repeated National Weather Service warnings of high winds and dry conditions, failed to notify Gatlinburg firefighters and police in time, broke their own firefighting rules and park service policy, and bear direct responsibility for the deaths and damage, according to the lawsuits.
But Coletti, defending the park service, argues park policy and practice grant firefighters like Salansky the discretion to respond to fires and other emergencies however they see fit — even when they make mistakes or should know better. Federal law generally shields such decisions from lawsuits, and Coletti wants all three cases thrown out.
“The park service did not intend [the rules cited] to be mandatory,” Coletti wrote. “Decisions when fighting wildfires require judgment and choice. … The essence of plaintiffs’ complaint is that the park service should have done a better job.”
Gilreath and Ball have until Nov. 30 to respond.
FROM SPARK TO STORM
The fire began Nov. 23, 2016, when Salansky spotted smoke coming from the park’s Chimney Tops peaks during one of the driest fire seasons in years. He at first chose to try to contain the fire rather than fight it, even though forecasts by the National Weather Service warned of high winds and “critically dry” conditions.
Salansky didn’t attack the roughly acre-sized fire directly, didn’t dig containment lines initially and waited four days to order water drops by airplane and helicopter. Most of the fire crew’s staff was on vacation due to the holiday. No one called them in.
Salansky settled on trying to contain the fire inside a 410-acre box in hopes of coming rain. Policy called for a second officer to review Salansky’s decisions, but top officials like park Superintendent Cassius Cash mostly deferred to Salansky.
Salansky didn’t assign anyone to watch the fire overnight, so rangers ended up caught by surprise when they discovered embers carried by the wind had started new fires the morning of Nov. 28, including a fire near the Twin Creeks Picnic Pavilion, within a mile and a half of the Gatlinburg city limits. Local officials didn’t learn about the fire until that morning when a Gatlinburg fire captain called Salansky about the clouds of smoke hanging over town — and didn’t learn until 12:30 p.m. the fire was headed their way.
The ABS review found that delay most likely cost lives.
Early attempts to build firebreaks focused on a single portion of the city — Mynatt Park and surrounding neighborhoods in the southeast corner at the national park’s edge — based on recommendations from Salansky and other national park officials.
But when winds topped 60 mph around 6 p.m., the fire grew and forked to fold around the city on both sides, with the western half of town undefended. Most of the fire’s victims died on that side of town, including Reed’s wife, Constance, and daughters Chloe and Lily.
Most of the 14,000 people in the fire’s path got away safely before the wind died down around 2 a.m. and the prayed-for rain finally doused the flames. Insurance claims ultimately added up to more than $1 billion.
Authorities charged two teenage boys from Anderson County with starting the fire by playing with matches. State prosecutors eventually dropped the case.