In 2022, the Strawberry Water Users Association (SWUA), a group of water shareholders in South Utah County, Utah, filed suit against the U.S. Forest Service alleging that the Forest Service was negligent in its response to the Pole Creek and Bald Mountain Fires of 2018, and that that negligence damaged SWUA’s property. The district court dismissed SWUA’s suit for lack of jurisdiction, ruling that the Federal Tort Claims Act’s discretionary-function exception strips the court of jurisdiction. On appeal to the Tenth Circuit, the court held that the discretionary-function exception to liability under the Federal Tort Claims Act applies to the U.S. Forest Service when it manages forest fires, even if those forest fires eventually enter private lands and raze communities.
The Tenth Circuit’s holding in Strawberry Water Users Association v. United States is not novel; courts have consistently held that the government is not liable for discretionary decisions made by its agencies, even when those decisions lead to significant harm. However, this case underscores the urgent need for a mechanism to hold federal agencies accountable when they fail to take a proactive and adaptive approach to fire management—one that balances the ecological necessity of fire with the imperative to protect communities and lives. The pattern seen in this case, where a fire initially deemed manageable is exacerbated by high winds into an unmanageable fire, occurs often. Hindsight has provided ample lessons for the Forest Service, yet the discretionary-function exception continues to shield the agency from accountability when it fails to respond in ways that reduce the impacts of fire on people.
