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Wednesday, August 5, 2020  Spokane, Washington  Est. May 19, 1883
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Fish Lake wildfire burned family’s forest in a day, and they say DNR missteps hindered five-year battle for railroad payout

By Jared Brown For The Spokesman-Review

The ingredients for an early season wildfire to ravage at least 145 acres and nearly 1,900 ponderosa pines combined piece by piece about 4 miles northeast of Cheney in mid-June of 2015.

There was a statewide drought, and the last time the Spokane area had seen rain – less than a tenth of an inch – was more than two weeks before, on June 1, according to National Weather Service data. And all but three of the previous 10 days in what would become Washington’s hottest summer on record topped 80 degrees.

Then, at about 2:30 p.m on June 17, two BNSF Railway locomotives lugged a nearly 9,000-ton train of 108 freight cars up a significant grade near Lakeside Junction at full throttle, according to a private investigation.

When overworked, the turbocharged engines are known to shoot smoke, sparks and flames out of their exhaust stacks, clearing out carbon deposits and spitting hot embers in the process.

Some 7 minutes later, Washington Department of Natural Resources staff reported a wildfire in dry, low-lying vegetation on private property about 40 feet from the BNSF tracks.

Winds quickly spread the fire up a steep slope and across multiple other private properties, including land belonging to Ruth and Don Smith.

The couple saw flames creep across more than 100 acres of predominantly forested land they acquired over their six decades together, parcel by parcel, since 1964. Don Smith spent the day directing firefighters around his property on an ATV while family members, accustomed to watching the horizon over the railroad tracks for smoke after at least a dozen apparent railroad fires, hosed down their roof and gathered valuables.

In the aftermath, Ruth Smith remembered how a firefighter dropped off a bouquet of flowers after crews confirmed they’d finally put out the fire more than two weeks later.

“At least you’ll be compensated,” she recalled in a deposition.

But that day didn’t come until about a month ago. And the Smiths will receive less than half the amount they need to restore their forest.

That is partly because DNR didn’t end its investigation until fall 2016 and, when they did, the agency didn’t determine the fire’s cause, according to the Smiths’ lawyer.

Don Smith, who grew bitter while spending some of the last days of his 87 years trying to repair land that will take decades to return to its prior form, died two days after the report was completed. His family says he was devastated by the news.

The ruling gave BNSF the opportunity to claim it wasn’t at fault, defend itself against the Smiths in court and, so far, avoid a payout to DNR for hundreds of thousands of dollars in firefighting costs.

‘A wall of flames’When the first crew arrived, the Fish Lake Fire had only spread among a couple of acres of grasses and the flames were just a few feet tall.

But the blaze soon made its way up a steep slope to flatter ground, according to Guy Gifford, a DNR spokesperson who happened to be a few miles away when the fire was reported.

“And then the fuel types changed, and it started picking up in speed,” Gifford said.

The flames grew to approximately 11 feet high within about 15 minutes as the fire continued to spread through brush and light timber, Gifford said.

A number of ponderosas were torched from the bottom up, with the fire climbing up trunks and past limbs, said Spokane County Fire District 3 Chief Cody Rohrbach, who was DNR’s fire district manager for the region at the time. He remembered the wind consistently blowing around 10 mph.

Flames leapt from crown to crown of many pine trees while the wind propelled embers hundreds of feet ahead of the blaze, sparking smaller fires and aiding its advance.

The fire’s mighty plume of smoke could be seen from downtown Spokane during the afternoon.

Numerous firefighters descended on the wildfire from Spokane County Fire District 3, DNR, Bureau of Land Management, Washington Department of Fish & Wildlife and most other Spokane County fire districts and departments, at first prioritizing the protection of several homes and other structures.

Fairchild Air Force Base also dispatched a tanker truck, and BNSF sent a five-car train carrying 11 4,200-gallon water tanks.

Family members were at the Smiths’ house within 20 minutes to whisk Ruth away, but she sat watching in a daze, even as sparks jumped across her hosed-down yard toward her house.

“We dealt with railroad fires before, but nothing like this,” Ruth Smith said. “It was devastating watching the wall of flames coming toward your home. I sat here with tears running down my face almost in a state of shock.”

Ruth Smith said several acres of her property had burned during the 50 years she lived there. She said her daughter became so used to this growing up that she scanned the railroad tracks for wildfires when she came home on the school bus.

“We always looked at the horizon to see if there was any smoke that direction,” Ruth Smith recalled her daughter saying in a deposition.

For their protection, the Smiths purchased a fire engine that remains in the family, and 30 or so relatives who live nearby – the unofficial “Smith Fire Brigade” – used to be on a list for Spokane County Fire District 3 to call, Ruth Smith said. They also maintained a firebreak along the railway fenceline that Ruth Smith said BNSF stopped clearing of debris around 2000.

In an email, a BNSF spokeswoman said, “Based on our records, this road isn’t on BNSF property and we don’t have maintenance responsibility for it.”

Aboard his ATV, Don Smith directed firefighters to an occupied home in the fire’s path that was previously unknown to response organizers, Ruth Smith remembered.

“Don said this was the first fire that really got into the tops of the trees,” Ruth Smith recalled. “All the rest were grass fires that you were able to put out.”

One small Fire District 3 crew, some of them volunteers, was trapped with an engine at that home near the head of the fire after flames cut off their escape route. Officials initially reported the structure was lost.

But the three firefighters waited for the fire to pass by and saved the home, Rohrbach said.

Photos show the house’s scorched deck, and a number of chickens burned near their incinerated coops.

“I saw 100-foot flames,” homeowner Davy Caven told The Spokesman-Review at the time. “It was just a wall of flames.”

After crews’ initial attempts to contain the fire at its flanks, three helicopters and an air tanker dropped water on the blaze, allowing firefighters to make a stand that evening at South Scribner Road.

“Which was fortunate,” said Rohrbach, who noted canyons and rough topography on the other side of the road. “It would have been challenging had the fire gotten east of Scribner.”

The wildfire was fully contained two days later, but crews continued to mop up hot spots for about a week. One firefighter suffered a minor injury during the response.

 (Molly Quinn / The Spokesman-Review)
(Molly Quinn / The Spokesman-Review)

‘One big hazard’The day after the fire started, Ruth Smith remembered sitting in her yard with her husband and son as two BNSF employees with clipboards walked toward them.

Most of their trees had burned or were incurably damaged.

Beetles later feasted on weakened pines that might have survived. Noxious weeds sprouted in the place of meadows and rocks protruded from where pine needles and shrubs had once been.

An abundance of birds no longer fluttered around the property, and the Smiths could not imagine owning cattle or horses again out of fear they’d injure themselves in holes left by burned trees. Other wildlife also became scarce.

With their fences destroyed, Don Smith regularly patrolled the grounds to ensure people stayed out of the dangerous wasteland.

The fire also consumed nearly all of the Smiths’ grandson’s neighboring 10-acre, forested property, which they sold to him to live on in 2014. His house was left unscathed.

Ruth Smith referred to their land as “one big hazard” in a journal entry during fall 2015.

“Because of fire damage we can no longer feel that we can go out in (the) fire area,” she wrote a week earlier.

As of this summer, Ruth Smith, now 86, said family members still have to clear more than 100 acres of burned trees, which continue to see limbs break off in the wind. In the past they have fallen precariously close to Smith during her regular strolls.

Inside their house, Ruth Smith cleaned for months to rid it of smoke damage and soot, though ash was blown indoors each time the wind picked up. With the loss of their tree canopy, the sounds of dozens of passing trains and their whistles intrude through open windows on warm days.

“Well, can we do anything? Can we help you?” Ruth Smith recalled BNSF employees asking in the aftermath of the fire.

But by that point, her husband’s devastation had turned to anger, she said.

“I think my Donald says, ‘Haven’t you done enough? Go away,’ ” Ruth said during a civil deposition.

Don Smith’s anxiety and depression worsened during subsequent months, and Ruth Smith said she also received medication to treat her own mental health diagnosis.

She wrote in a journal that she feared her husband’s health was failing due to stress.

An Illinois transplant through the Air Force, Don Smith met Ruth while stationed at Fairchild. Their first date was at the Fish Lake Resort, and they were married in Montana three months later, in August 1952, with $5 to their names.

They started acquiring parcels of land near Cheney in the mid-1960s, and Don Smith retired as a rancher and farmer following his time as a logger, pipeliner and heavy equipment operator.

“To see everything we’d worked for over all those years go up in a day, he just kind of lost heart in the whole thing,” Ruth Smith told The Spokesman-Review.

But despite his loss of interest in enjoying the land, Ruth Smith said her husband still felt a responsibility to restore it.

Soon after he learned that DNR couldn’t determine a cause for the fire, Don Smith died of sepsis, which is caused by the body’s inflammatory response to fighting an infection and can lead to organ failure.

“He was out checking weeds on his ATV right up until several days before he passed away,” Ruth Smith said.

‘A paper war’After the Fish Lake Fire, the Smiths contacted an attorney about a wildfire on their property for the first time.

“Don Smith called me, I think the day after the fire, and said, ‘Our entire forest burned,’ ” Spokane attorney Richard Eymann remembered. ” ‘It was started by the railroad and what do we do?’ ”

Eymann, who has represented landowners in railroad- and utility-caused wildfires going back to 1998, found many similarities in the case with the 2007 Marshall Complex Fire, where he filed suit against BNSF after embers from one of its locomotives caused several fires that burned 365 acres.

He arrived at the Smiths as firefighters continued to attack fires in the trees and undergrowth with shovels and suppressants.

“It was ashes,” Eymann said. “It was just a horrible scene.”

Within weeks BNSF settled with multiple neighbors whose property was damaged. The landowners signed nondisclosure agreements that forbid them from speaking about the arrangement with the railway, according to Eymann, who contacted some of them on the phone.

BNSF said in a statement that it did not admit any liability in settlements with landowners. The railway did not immediately respond to a follow-up email about the number of settlements.

Eymann said an insurance claims adjuster told him not to file a lawsuit against BNSF because the railway would offer them money if the Smiths provided an estimate of damages, which an expert determined to be about $950,000 for the restoration of 160 damaged acres.

But that settlement never came.

Instead, during mediation that followed Eymann filing suit, the attorney said BNSF offered the Smiths $100,000, which was less than the cost of the land before the fire. Ruth Smith was adamantly against signing any agreement that would prohibit her from speaking out.

With the parties so far apart, Eymann said the chance of an arrangement outside of court became impossible.

During two years of litigation, Eymann said he has filled four banker boxes with motions, pleadings, photos and other court documents.

“When you’re going up against an outfit like Ford or General Motors or, in this case, BNSF, they turn it into a paper war,” said Eymann, who estimated filing fees and other expenses totaled around $80,000. “It can get very costly very quickly.”

A portion of those expenses was to hire and train wildfire experts to do what DNR investigators could not: pinpoint the cause of the Fish Lake Fire.

‘A recipe for a locomotive-caused fire’A number of the largest wildfires during the unprecedented 2015 season, which saw more than 1 million acres burn statewide, were caused by lightning, arson and farm equipment and grew to thousands of acres.

But at fewer than 150 acres, the Fish Lake Fire cemented itself in the memories of Rohrbach and Gifford as one of the first fires that marked the start of a catastrophic summer.

Typically, fuels such as brush and timber don’t reach peak dryness until early July, not mid-June.

“2014 and 2015 were kind of our epic fire seasons, so we saw these big fires early,” Rohrbach said.

“The biggest thing was getting that large of a fire that early in the season with that rapid of fire spread,” Gifford said.

A full-time senior DNR fire investigator arrived at the scene of the Fish Lake Fire around 8 p.m. after driving about 150 miles from Omak, according to a DNR report. He and another part-time investigator walked to the rear of the fire and scanned the blaze’s general origin near the railroad tracks after nightfall.

A guard stayed in the area overnight and the senior investigator cleared the scene the following evening, according to his report. He said he used magnifying glasses, magnets and metal detectors to attempt to determine the cause of the fire but did not record recovering any evidence.

About 15 months later, the investigator wrote that he could not rule out power lines, recreational and transient activity or arson, in addition to the railroad, as potential causes of the fire.

But private fire investigator Mike Cole, who worked for the California Department of Forestry and Fire Protection for 37 years and was hired by Eymann to investigate on his behalf, quickly ruled out any cause except for the railroad after walking the scene of the fire last July.

The nearest power line conductors, operated by Inland Power and Light, were almost 70 feet from the origin of the fire, and Cold said the utility informed him its equipment was in working order during the fire and had not needed major maintenance since.

“The wind direction was basically in favor of ruling out the power lines, plus there were no anomalies on the power lines,” said Cole, who noted they weren’t damaged during the fire either.

Cole also expected to find hiking trails nearby after reading DNR’s report, but he discovered the Fish Lake Trail stops about a one-half mile from either side of the tracks with no way to cross without trespassing.

For an arson fire, Cole said investigators should find evidence of matches or a time-delayed incendiary device. If someone started the Fish Lake Fire by hand and ran, they would have had to climb the steep hill of loose rocks that the fire started on to escape.

“To say that incendiary is a possible cause, you have to have evidence to support that hypothesis. And there was no evidence,” Cole said. “If you’re going to use that as a possible cause in this scenario, you could use that in any scenario.”

The railroad, on the other hand, was a near-perfect scenario for wildfire, according to Cole and train expert Brandon Ogden, a former BNSF employee also hired by Eymann.

The lead locomotive was listed as defective due to an exhaust leak 19 days after the fire, according to Ogden. A BNSF work report showed one exhaust manifold’s bolts were all missing and its wiring was melted.

The train also was without a requisite third locomotive, which meant the remaining two were running at max throttle to avoid stalling on the slope out of Spokane. That increased the chance of emitting carbon particles from their exhaust, Ogden concluded.

“The fuel burn off that can occur when diesel is in the valves can ignite carbon build-up, causing it to emit out of the stack,” Ogden wrote. “Weather conditions were conducive for carbon exhaust ignitions. … There was ample wind to blow the carbon exhaust particles to the vegetation just off the railroad right of way.

“The circumstances were a recipe for a locomotive-caused fire.”

The DNR investigation appears to have not covered key information found by Ogden and Cole, including the timing of passing trains and their maintenance records.

The fire’s senior DNR investigator left his job in 2017 and was replaced by a regional investigator who aided in the Fish Lake investigation.

He was deposed as a part of the Smiths’ lawsuit last fall.

He told attorneys that the final investigation took an unusual amount of time to complete and did not include his supplemental report, which is standard practice, according to court documents. With new information about the power lines in the area, he also agreed the utility could be ruled out as a fire cause and noted that carbon particles from train exhaust can’t be recovered about 50% of the time.

Investigators find the cause of the vast majority of wildfires, according to DNR Sgt. Gary Margheim, who has overseen wildfire investigation in Eastern Washington since 2017. A small minority are left undetermined.

Two full-time senior wildfire investigators work in Eastern Washington on complicated fires, such as those potentially involving railroads, Margheim said. Forty or so other DNR employees in Eastern Washington investigate fires, in addition to other roles, such as fire engine operators and foresters.

Railroads caused at least 159 wildfires in Spokane County between 1970 and 2006, with 36 of those in the Cheney area. As of the end of May, DNR had recorded one railroad-caused wildfire in Washington in 2020.

Cole, the private investigator, said if he had encountered recurring problems with railroad-caused fires in his jurisdiction with Cal Fire, he would be out inspecting locomotives and ensuring railways maintained firebreaks along their tracks.

He couldn’t recall a single wildfire caused by railroad exhaust during his firefighting career.

“When you let the fox watch the hens, there’s going to be a problem,” Cole said about trusting railroad companies to take proactive measures.

‘The public’s paying for it’Ahead of trial, BNSF made an offer of judgment to Ruth Smith and her grandson for a total of $426,000, according to court documents filed at the end of May.

But so far, DNR officials have not openly discussed pursuing a civil case against BNSF to recover firefighting costs in light of the Smiths’ experts’ findings, according to a department spokesperson.

The Washington Attorney General’s Office considers lawsuits in wildfire cases on the recommendation of DNR officials if the cost to the state was more than $100,000 to fight, according to Margheim.

The Fish Lake Fire cost responding agencies about $500,000 to suppress, according to a report from the Northwest Interagency Coordination Center.

Ruth Smith said those unrecovered taxpayer dollars exacerbate her frustration.

“The public’s paying for it,” she said.

But with no statute of limitations on cases where the state government is a victim, Margheim said DNR could still recommend a lawsuit. He knows of two such instances in which the state pursued a case after the outcome of a private landowner’s litigation.

The attorney general’s office, which was involved in the fall 2019 deposition of the DNR fire investigator, said it could not confirm the existence of an investigation into the Fish Lake Fire.

Ruth Smith said the $370,000 she’ll receive is just a fraction of what she needs to restore her land, but the offer ensured she’d see some form of restitution before she dies and allowed her to speak about what happened until that day.

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