Perkins County ranchers file suit over 2013 blaze

The fire jumped across the Hanes Road as the wind pushed from the northwest. Photo courtesy Bridget Keller
Stewards of the Land: Ranchers, Livestock and Federal Lands Editor's Note: We have compiled a list of all the articles we have published, as well as a timeline of the events, surrounding the Bundy Standoff and other incidents relating to government control of public lands such as the Hammond Fire Trial and the occupation of the Malheur National Wildlife Refuge. Click here to read more. 

After a U.S. Forest Service-ignited fire sickened and killed cattle while burning privately-owned grass, fences, hay and trees, and the agency refused to compensate them, Perkins County, South Dakota ranchers have now taken the next step and filed suit.

Rancher and forest service permittee Vince Gunn, Shadehill, said that civil action – which would result in a jury trial – is not permissible when suing the federal government. “You’d be guaranteed of getting somewhere with that, it would hasten the process,” he said. Instead, he and other ranchers filed three separate tort claims – their only option – in U.S. District Court in Rapid City, S.D. The U.S. Department of Agriculture informed the ranchers in June of 2015 that it would accept no responsibility and cover no associated expenses from the April 2013 fire.

Gunn said three different attorneys offered their services to the ranchers who suffered loss in the so-called Pautre Fire. The U.S. Forest Service chose to light a prescribed burn on federal land on a warm, windy day following months of drought. The fire burned beyond the planned 135 acres of crested wheatgrass on the west side of the Grand River National Grasslands, to encompass an estimated 11,000 acres – about two-thirds private and one-third federal land. The properties are intermingled and include a number of shared fences.

Gunn he and a few others chose to hire a Rapid City attorney from the Bangs McCullen law firm.

While he did endure mental and physical stress during and after the fire, Gunn said the only damages he’s seeking compensation for are actual, documentable damages, like fencing materials, labor and loss of value to his property. Gunn has received no compensation for any losses from the fire, and he is not aware of any other ranchers nor the grazing association being offered any reimbursement.

There was one point in the midst of the fire that Gunn became surrounded by flames and was able to walk through them to safety, probably due to the coveralls he was wearing, he said. He did not have cattle on the land that burned, so there were no ill-affects to his livestock.

Gunn explained that a leasee cannot sue for damages on leased property. Some absentee landowners have filed suit, and the grazing association itself has joined a lawsuit separate from Gunn’s, seeking compensation for expense to rebuild fence and for damages on land the association owns.

President of the Grand River Grazing Association, Dan Anderson of Meadow, S.D., confirmed that the association is a party in a lawsuit but chose not to confirm the name of the attorney and said he doesn’t not know the exact dollar amount sought but confirmed that the majority of the association’s expense was and continues to be fence rebuilding. Former Grand River Grazing Association president Tim Smith, Lodgepole, commented in an earlier TSLN story that around 25 miles of association fence burned and tort claim specialist Frank Carroll had helped at least one rancher settle on a value of $4 per foot for rebuilding fence, based on local fencing crew estimates.

In order to gain ground in the lawsuit, the plaintiffs have to prove complete negligence on the part of the U.S. Forest Service.

In an earlier TSLN story, Smith, recalled then-USFS ranger Paul Hancock saying at a public meeting in Hettinger, North Dakota, about five days following the fire, “The forest service is liable and responsible. We will do whatever it takes to make you whole again.” Those same words appeared on a poster in the room the day of the meeting.

Smith also said in that story that the Bismarck weather department had reported extreme dry conditions and recommended no burning. Local ranchers also asked the forest service not to burn because the area was very dry after months of drought and they day was expected to be warm and very windy.

Gunn credited the numerous local fire departments that hurried to the fire, for eventually extinguishing it.

According to the Rapid City Journal, three lawsuits were filed.

One suit lists five rancher and farmer plaintiffs in Perkins County: the Darci D. Feifer Limited Partnership; David and Lori Bossman, general partners (listed as one plaintiff); Vincent and Susan Gunn (listed as one plaintiff); Duane Meink; and Ken Krisle. They are represented by Terry Hofer, of the Bangs McCullen Law Firm in Rapid City.

The second complaint includes nine plaintiffs: Eric and Laurie Casper (listed as two plaintiffs), Diamond Acres Trust, Grand River Cooperative Grazing Association, Robert and Connie Hermann (listed as two plaintiffs), Ryan Hermann, Jamie Hermann and Roger Sonn. They are represented by Gary Jensen of the Beardsley, Jensen & Lee law firm in Rapid City, and Richard Goeken of Smith, Currie & Hancock in Washington, D.C.

The third lawsuit includes 11 plaintiffs, all Perkins County residents: Larry, Kathy, Ryan and Stephanie Archibald; Gayle and Linda Evridge; Lavonne and Richard Foss; Duane and Dawn Harris; and Albert Keller. They are represented by Jeffery Collins, an attorney with the Rapid City law firm of Lynn, Jackson, Shultz & Lebrun.

The Rapid City Journal also reported that the federal government has 60 days from the date each lawsuit was filed to respond.

The plaintiffs had six months to file suit after they were informed by the USDA that the government agency would take no responsibility for damages caused by the fire.