Senators ask Forest Service to take responsibility

This photo, taken July 28, 2013, shows the resurgence of crested wheatgrass on the grasslands that were burned earlier that year. While the Hermann family is pleased that moisture and good growing conditions helped the forage thrive both last year and this year, Laurie (Hermann) Caspers said the very intent of the prescribed burn - reduction of crested wheat grass - was obviously highly unsuccessful. Photo by Laurie Caspers
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. 

Claims for reimbursement after being wronged by the government can only be made after negligence has been established.

Individuals and the Grand River Grazing District affected by the Pautre Fire have filed claims for damages and are now waiting on the process to move forward. The Pautre Fire was a prescribed burn conducted by the U.S. Forest Service in April of 2013, originally intended to cover 130 acres. Dry, windy conditions fanned the flames and the fire scorched more than 11,000 acres of private and federal land in Northwestern South Dakota, before being brought under control with the help of several volunteer fire departments.

Patty McGhee, claims specialist with the U.S. Forest Service who works out of the Albuquerque, N.M., office said there is a tort claims process used for any claims filed against the federal government. “It’s not an easy process, it’s not a fast process,” she said.

South Dakota Senator John Thune (Rep.) said he met with many of the ranchers last year and he is getting frustrated now with the slow response from the Forest Service claims office. He sent a letter last week urging Secretary Vilsack to accept responsibility for the fire and make payment to those affected.

“They are dragging it out. It is fairly clear the Forest Service is negligent. They need to fairly negotiate those claims in a fair amount of time like six months,” he said.

Thune pointed out that even the National Weather Service, the day of the fire, put out a warning saying there was high fire danger.

“I don’t think there is any question, there wasn’t any question even originally [who was at fault] but that is another piece of information that validates that they did something going in that caused harm to a lot of people.” Thune thinks around $10 million in damages are owed to 15 individual claimants as well as the grazing association.

Senator Heidi Heitkamp (D-N.D.) also weighed in on the issue, speaking on behalf of ranchers at a meeting with the head of the U.S. Forest Service in late May. “I am alarmed by reports that the Forest Service may consider limiting reimbursements for ranchers impacted by the Pautre Fire by taking the position that the fire was not the result of negligent behavior,” she said in her letter to Forest Service Chief Tom Tidwell. “The Forest Service must follow through by compensating ranchers in full,” she added.

“There has to be negligence established and we don’t do that here,” McGhee said. “We collect the information, put it together in a report and send it to Washington to the Office of the General Council to review.”

It could be two years after the incident before the report is even sent to the OGC, she said, because, legally, potential claimants have that much time to file a claim. Her office often likes to wait for the full time period, in order to be sure they have all information in one place, and aren’t sending multiple reports.

“When you get one claim but you know there will be 14 to 20 more, you hold them until you are sure you got them all,” she said.

McGhee said she has worked individually with many ranchers affected by the fire, helping them gather the necessary paperwork to prove ownership of their property and to prove the loss they incurred. “The money we pay out is tax dollars so I tell these folks, I need documentation, I need proof.” She is currently waiting on some of this information, she said, and has had detailed conversations with several ranchers involved.

“I can’t tell them how to do it, I don’t tell them what to put on there but what I do tell them is to carefully consider everything and then make sure you include supporting documentation, especially loss of income,” McGhee said. “I’m not a rancher, I don’t know about your business, loss of income is your past tax returns, show me how much you made other years.”

After the report is submitted to the OGC there is no timeframe for when a determination will be made or payments remitted, McGhee said.

If someone gets impatient and takes the issue to court right away, it will likely slow down the process even more, McGee said. “If one person in the group decides they don’ t want to wait or let the process go through, it will pretty much push everyone into court and then our office is no longer a player. It goes to the Department of Justice.”

Laurie Caspers, who along with her husband Eric, parents Bob and Connie Hermann and brothers Ryan and Jamie Hermann, experienced loss of grass, fence and cattle in Perkins County, S.D., from the fire, said the box that held their individual tort claims weighed 44 pounds when packaged together and mailed to the claims office last March.

“We wanted the initial claim to be as accurate as possible,” she said. “It honestly took us almost a year. It took that long for things to really settle down to where cattle weren’t dying on a daily basis, which translates to another lab report.” She said they wanted to be sure the proper documentation such as photographs, vet statements, and assessment of grass and weed growth was all included.

While Caspers isn’t sure how many cows they lost after the fire, the number is significant. Cattle belonging to her and her husband were trapped and surrounded by flames and smoke, saved only by a firebreak her brother and dad dug quickly as the fire neared.

Throughout the summer, seemingly healthy cows would go into convulsions and die, she said. Local vets performed postmortem examinations on the cattle and determined that soot was clogging the animals’ lungs.

The family sold several semi loads of cows after the fire as grass just wasn’t available. Caspers also said the calves she and her husband backgrounded didn’t weigh as much as they have in the past, and that the cow deaths subsided as summer ended but several bulls died over the winter, due, they believe, to fire complications.

Caspers said she and the rest of the family are slowly rebuilding fence as time and finances allow. Grass is plentiful this spring, after abundant winter and spring moisture but crested wheat grass, which the Forest Service was hoping to control with the fire, has come back with a vengeance she said.

“The crested wheat grass is thriving and doing amazingly well. The horizon is just loaded with crested wheat grass,” she adds that agency’s the objective to reduce that non-native grass was “counter productive.”

Caspers has hope for the future and is optimistic that their review will be fairly answered. “I’m just glad we are done losing cattle.”That’s really hard….you have such a deep bond and love for what you’re doing and when you watch that happen time after time, it becomes very difficult emotionally…so we’re very glad that that part of it seems to be over. That was a very trying time,” she said.

“We’re in this business because we love it and want to surround ourselves and family in it. You wouldn’t do it if you didn’t have that connection.” But it is those emotional bonds that make it especially hard to watch helplessly as an animal suffers, she said.