Gregory G. Green and Victoria D. Green, husband and wife, Plaintiffs,
United States of America, Defendant. Silver Starr De Varona and John Elbert Ervin, husband and wife, Plaintiffs,
United States of America, Defendant.
CINDY K. JORGENSON, District Judge.
Pending before this Court is Defendant's Motion for Summary Judgment. (Doc. 86). A response and reply have been filed.
I. Factual Background 
This case arises from the efforts of the United States Forest Service's ("Forest Service") efforts to combat a wildfire within the Santa Catalina Mountains. Plaintiffs Gregory Green and Victoria Green ("Green") and Plaintiffs Silver Starr De Varona and John Elbert Ervin ("De Varona")(collectively "Plaintiffs"), own separate parcels of property located within the Santa Catalina Mountains. (Doc. 91; Plaintiffs' Additional Statement of Facts at ¶25)("PSOF").
On May 21, 2002, a wildfire was discovered burning on the back side of the Santa Catalina Mountains, ("Bullock Fire"). (Doc. 87; Defendant's Separate Statement of Facts at ¶1)("DSOF"). Fire crews experienced significant problems in controlling the Bullock Fire due to the fire's extreme behavior, drought conditions, and inaccessible terrain. Id. By May 26, 2002, the Bullock Fire grew to encompass approximately 14, 500 acres. Id. A mandatory evacuation of the residences and businesses in the Mt. Lemmon area was completed by May 26, 2002. Id. On May 28, 2002, road access to Mt. Lemmon was closed. Id. at ¶5. However, private property owners and residents of lands within the boundaries of the Coronado National Forest were exempt from the road closures. See (Forest Service Closure Order as Exhibit 1 to Doc. 96).
The geographic responsibility for fighting the Bullock Fire was divided into alphabetical divisions. Id. at ¶7. Division Q was the firefighting division responsible for the control lines near the Plaintiffs' properties. Id. at ¶¶6, 8. Toby Richards was the supervisor of Division Q. Id. at ¶10. Control lines were constructed along the top of Mt. Lemmon at the southwest flank and along Oracle Ridge, northeast to Marble Peak then down to the Oracle Mine. Id. at ¶¶3-4. Mine Haul Road served as the control line further east towards San Manual. Id. at ¶4. From May 29 through May 31, 2002, Division Q constructed hose lays and performed preparation work around the mine and dozer-constructed control line. Id. at ¶16. This work was completed the afternoon of May 31, 2002. Id.
According to Toby Richards, fire personnel scouted the area north of the control line within division Q and located a green roofed house and the Greens' property. Id. at ¶11. The fire personnel found the green-roofed house defensible with minimal preparation work. Id. at ¶11. However, fire personnel found the Greens' property indefensible because of mine shafts in and around the area and excess vegetation. Id. at ¶11. Plaintiff Gregory Green contests that his property was indefensible due to the amount of vegetation and burnable material in the area. He asserts that prior to the fire, he had taken measures to reduce the risk of fire damage to his structures including removing fire susceptible groundcover and dead branches. (PSOF at ¶42).
On June 1, 2002, the fire personnel burned the control line from Division P into Division Q, ("backfire"). (DSOF at ¶18). On the afternoon of June 1, 2002, either the Bullock Fire breached the control line and burned the Plaintiffs' properties or the Defendant lost control of the intentionally lit backfire, which burned the Plaintiffs' properties. (DSOF at ¶18; PSOF at ¶¶2, 9, and 18).
On June 4, 2002, Toby Richards was advised for the first time about the De Varona's property. (DSOF at ¶19). In his June 4, 2002 unit log, Mr. Richards noted:
Roy Hall advised me of Star Place... I scouted area, all structures destroyed. I was not aware of the Star Place. We did not attempt to defend. (Doc. 88-1).
However, during his deposition ten years later, Mr. Richards explained that on June 4, 2002, when he attempted to drive down the road to the De Varona's property, he observed that it was overgrown with vegetation and he was unable to drive a truck through the area. (DSOF at ¶19). Mr. Richard's explained that since he was not aware of the property he never attempted to defend it. However, due to the excess vegetation he observed after the fire, he concluded that the property was indefensible. Thus, even if he knew about the property, he would not have sent fire personnel into the property to defend it. (DSOF at ¶20).
Plaintiff De Varona testified during her deposition that she had a highly vegetated dense thick property. (DSOF at ¶21). However, she always pruned the roads for vehicles and trucks to pass. (PSOF at ¶61). In her affidavit, she explained that on June 4, 2002, after the fire was extinguished, she drove to her property with Toby Richards and the roads were not covered with overgrown vegetation and were easily passable. (Doc. 91-5).
II. Summary Judgment Legal Standard
Summary judgment may be granted if the movant shows "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Rule 56(c), Federal Rules of Civil Procedure. The moving party has the initial responsibility of informing the court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, " which it believes demonstrate the ...