The U.S. Court of Federal Claims on Sept. 11, 2025, issued a significant decision addressing the standard for government liability under the Fifth Amendment’s takings clause in the context of federal wildfire suppression efforts. In McDonough v. United States, ranch owners in Wolf Creek, Montana, sought just compensation from the federal government, alleging that intentional burn operations conducted by a U.S. Forest Service team during the 2017 Alice Creek Fire constituted a taking of their property — specifically, range forage and timber that the government used as fuel to conduct intentional burn operations to suppress the spread of the fire. The plaintiffs contended that these actions were undertaken to protect other “values at risk,” such as residences, infrastructure and critical facilities, and that, but for these government actions, their property would not have burned in the fire.
The Court’s Reaffirmance and Clarification of the Legal Standard
The court reaffirmed that, under the Fifth Amendment, a plaintiff bears the burden of proving causation in a takings claim. Specifically, the plaintiff must demonstrate that, in the ordinary course of events and absent government action, the injury to their property would not have occurred. The court emphasized that this analysis requires consideration of the entirety of the government’s actions in response to the relevant risk and a comparison of the actual damage to what would have occurred had the government not intervened at all.
Importantly, the court clarified that the takings clause does not employ a “substantial factor” standard of causation; rather, the inquiry is whether the government’s actions were the cause-in-fact of the alleged injury.
The Court’s Findings and Analysis
Based on a four-day bench trial in December 2024, the court found that the plaintiffs failed to meet their burden of proof on causation. The evidence established that the Alice Creek Fire was ignited by lightning and fueled by severe drought, dry conditions and abundant dead timber. The fire’s progression was driven by extreme weather, including high winds and low humidity, which created red flag conditions and led to rapid, unpredictable fire spread and spotting prior to the government’s intentional burn operations.
The court found that, absent any government intervention — including not only the intentional burns, but also the construction of fire control lines and helicopter water drops — the fire would have continued to spread naturally, likely resulting in equal or greater damage to the plaintiffs’ property.
Testimony from the government’s fire behavior experts and incident commanders supported the conclusion that the government’s suppression efforts, including the intentional burn firing operations, were largely successful in protecting certain structures owned by the plaintiffs and did not cause the plaintiffs’ losses. In comparison, the court gave little weight to the plaintiffs’ reliance on fire spread probability models and infrared mapping, finding these tools insufficient to account for the actual weather and fire behavior that occurred during the relevant period. The court also noted that no expert testimony was offered to support the proposition that the plaintiffs’ property would have fared better had the government taken no action. Rather, the plaintiffs’ expert was only asked to provide an opinion concerning whether the firing operations were a “substantial factor” in causing damage to their property.
Implications for Other Wildfire Events
The McDonough decision underscores the high burden plaintiffs face in takings claims arising from federal wildfire suppression efforts. A potential implication of this decision could be when a private entity is alleged to have ignited the wildfire, but the government decides to use that fire as a controlled burn. For example, earlier this year, the Dragon Bravo Fire was ignited due to lighting, but the National Park Service decided to manage the fire as a controlled burn. Ultimately, the Dragon Bravo Fire burned over 140,000 acres and destroyed 113 structures, including the historic Grand Canyon Lodge, and one person reportedly died. After McDonough, the question remains whether the takings clause would provide any avenue of recovery for private property owners whose property is destroyed in a similar situation, when a private entity ignites the fire, and a government entity decides to let it proceed as a controlled burn to suppress its spread.