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Fire liability depends on DNR, possibly courts

State, property owners can seek charges, damages

It probably will take months and maybe a judge or jury to conclusively decide if anyone is legally responsible for last week’s devastating Spokane Valley fire that destroyed 11 homes and cost $3 million to control.

Investigators for the Spokane Valley Fire Department say they aren’t going to criminally charge anyone, but the state’s Department of Natural Resources still could seek criminal charges or civil damages for firefighting costs.

Property owners, in the meantime, could line up separately or collectively and file suits for damages against anyone they think might be liable for the fire that destroyed high-priced homes and their contents – now ashy heaps of rubble.

A battery of civil suits followed firestorm ’91 in Spokane County, when 1,000 homeowners sued Avista and Inland Power and Light, settling out of court years later for about $12 million. Downed power lines caused multiple fires in that incident.

Dr. Tracy Berg, a Spokane surgeon, was present when a teenage boy started a fire in a pit on July 7 on property adjoining her home, according to a Spokane Valley Fire Department news release. Berg has retained Seattle attorney Tammy L. Williams, who didn’t want to talk Thursday about her client’s potential liability. Williams thanked firefighters for saving several homes, including Berg’s.

Architect Glen Cloninger, who owns the undeveloped land where the fire pit was located, said Thursday he didn’t give permission to anyone to start fires on his property and that he told that to Department of Natural Resources investigators. He hadn’t retained an attorney but was thinking about it, Cloninger said.

“I had no involvement with the fire,” Cloninger said. “I didn’t give anybody permission or anything to be there or do that.” He said he’s never met Berg or her family.

Spokane attorney Richard C. Eymann, who has filed a half-dozen wildland fire suits on behalf of damaged-property owners in the past 16 years, said he thinks both Berg and Cloninger are at risk of being sued.

“If I was either one of them, I’d be running for an attorney right now,” Eymann said.

“If a homeowner came to me to seek compensation for their losses in a case like this … then I would advise the homeowner that a claim should be made against both the doctor and the neighbor,” Eymann said.

Property owners facing such civil suits can be covered by their homeowners or other insurance, to a point. After maximum liability limits are reached, the person whose property was destroyed might file liens against the defendant’s other assets.

“Although a jury would make the ultimate decision, it is common sense that any outdoor open fire during ‘fire season’ in Eastern Washington is risky, even foolish, unless adequate precautions are taken,” the private attorney said.

Cloninger said such civil suits are “silliness and nonproductive.

“It might work for the attorneys, but it’s not effective and is costing this country a lot of needless loss of productivity,” he said.

Investigators for Spokane Valley Fire Department have decided not to criminally charge anyone tied to the fire pit on Cloninger’s land, believed to be the source of the 1,000-acre fire, Chief Mike Thompson said Thursday.

That, however, doesn’t end things.

The state DNR, conducting its own investigation, could separately decide to bring criminal charges or pursue civil damages to recover firefighting costs, DNR regional manager Loren Torgerson said Thursday.

“On all wildland fires, if there’s negligence or criminal activities, we can bring criminal charges,” Torgerson said. “We have not made that determination on this fire.”

To bring criminal charges, prosecutors generally look at the question of criminal intent – whether someone intended to break the law. That element is usually missing if a catastrophic event was deemed an accident.

To recover firefighting costs, the Department of Natural Resources can use a relatively new state law, tagging a responsible property owner for the costs of putting out wildfires that start on private land and spread to timber and rangeland protected by DNR.

“We definitely have had cost recoveries for wildland fires, and some have been significant,” Torgerson said.

The DNR regional supervisor declined to predict when DNR investigator Dennis Heryford would conclude his report and forward it to Assistant Attorney General Mike Rollinger, in Olympia, who handles cost-recovery actions for the state.

“We’re still interviewing people,” Torgerson said. “We’re going to take our time and make sure we have all the correct information.”

The fire was reported at 3:17 p.m. July 10 at South Eastern Road and East Moreland Drive, a spot in Spokane County Fire District 8.

Because of mutual aid agreements, Spokane Valley firefighters were among the first on the scene as the wind-whipped fire raced out of control until early the next day.

Spokane Valley Fire Department investigators said the fire’s origin was traced to a fire pit on a six-acre parcel of undeveloped land at 1825 S. Eastern Lane owned by Cloninger. He once had thought about building his own home there but now has the land for sale.

The fire pit – a depression where a tree stump once existed – had been used since the mid-1990s, the DNR investigator told The Spokesman-Review on Wednesday.

On July 7, a 16-year-old boy who is a friend of Berg’s 16-year-old son asked and was given permission to use the fire pit to roast marshmallows, Heryford said. Afterward, the fire was doused with water, but its embers apparently extended to underground roots, and the fire re-ignited three days later in high winds.

“Extinguishment of the fire turned out to be the responsibility of the juvenile unrelated to the Berg family,” said Bill Clifford, deputy fire marshal for Spokane Valley Fire Department.

Berg said she was overwhelmed and directed questions Thursday to her attorney.

“Her only comment at this time regarding the ongoing investigation of the cause and origin of the fire is to express her appreciation of the investigators’ diligence and expertise,” Williams said.

“She would also like to express her deepest condolences to the families who have lost their homes and pets, and she would like to thank the firefighters who battled the fire and saved so many homes and lives, including hers.”

Contact Bill Morlin at (509) 459-5444 or