As the devastation of the Oso landslide becomes more apparent with each passing day and the disaster appears to clearly involve dangerous logging practices, attorney Dean Brett recalls similar landslides in the past where he handled the legal claims for the families of the victims. Similar to the Oso mudslide, the horrific landslides from which Dean handled five lawsuits were the result of unsafe logging practices and governmental negligence.
Landslides don’t just happen. They are caused by a combination of steep slopes, recurrent heavy rainfall, unstable soils, and defective logging practices. In five cases similar to the Oso slide, Dean successfully recovered significant damages for downhill owners inundated by landslides. Four of the five lawsuits settled out of court, and the fifth resulted in the largest verdict ever rendered by a Skagit County jury at the time – a record which stood for 22 years until Brett surpassed his own record in a later Skagit County case.
The effectiveness of these landslide cases is often hinged on building a team of expert witnesses who could explain how each landslide was caused. In the trial of Wilson, Smith and Bower v DNR and Georgia Pacific, Skagit County Cause # 86-2-00164-9, Dean built exactly that, and the resulting verdict enabled surviving family members to recover financially, even though they would never fully recover emotionally from the loss of their loved ones.
Early one November morning following heavy rains, a massive mudslide roared down Lookout Mountain into Cascade River Park, a recreational development in eastern Skagit County. Bill Bower, 74, Alice Bower, 73, and Betsy Jean Wilson, 63, were killed instantly. Claire Wilson, 64, was buried alive for 13 hours before he was pulled from the debris; he died 13 days later.
Their attorney Dean Brett faced a significant challenge: since the mudslide originated from an old logging road that had been abandoned for 23 years, would a jury hold the state liable for a defect in a road built in the 40's and not used since 1962?
Brett focused on the Department of Natural Resources' practice of not inspecting or maintaining old logging roads that had been abandoned before the 1974 Forest Practices Act. The central liability theme was presented in the question: is the Department of Natural Resources' practice of refusing to inspect or maintain pre-1974 logging roads, even above established residential communities, negligent?
The DNR admitted to the lack of inspections but argued that since there are thousands of miles of old logging roads, it would be impractical or impossible to inspect or maintain all of them. The claimants countered with a team of four experts who documented the danger associated with this practice.
First, a geomorphologist testified that landslides such as this occur when four interrelated conditions are present: steep slopes, recurrent heavy rainfall, unstable fill at switchbacks on logging roads, and defective drainage. The fourth critical factor, defective drainage, is particularly within human control; thus, DNR's failure to inspect and correct the defective drainage was found to be a direct cause of the landslide.
In the Darrington Oso landslide, the DNR approved clear cutting on the hillside above Steelhead Drive even though they knew the steep slopes were composed of unconsolidated sediment, mostly sand and silt.
Second, a climatologist analyzed the weather data to demonstrate that the mudslide was not caused simply by an unusually massive rainstorm. By analyzing all of the rainfall data ever obtained in the surrounding area, he estimated that the four inches of rain that fell in the 24 hours preceding the mudslide would have a probability of recurring once every 13 years and consequently could not alone be blamed for the mudslide. A similar statistical analysis of the rainfall preceding the Darrington Oso landslide could be generated from publically available data.
Third, in the earlier case of Wilson, Smith and Bower v DNR and Georgia Pacific, a noted forest hydrologist demonstrated that the blocked drainage had effectively rechanneled a natural stream onto the logging road at an area of instability. There the water saturated the unstable soil, increased its pore pressure, increased its mass and decreased the forces resisting a landslide to a point of disequilibrium.
Fourth, a consulting forester pointed out that simple drainage control devices, well known in the logging industry at the time the road was abandoned in 1962, could have been installed so as to prevent the diversion of water that ultimately caused the mudslide.
There has been significant work done on the soil condition of the Darrington Oso hillside – work that was completed before the tragic slide but not taken into consideration by the DNR in granting forest land clearing permits.
The DNR blamed the Cascade River Park mudslide on channel changes so recent that reasonable inspection could not have been expected to find them. But Brett’s team had created videotapes of the site, aerial photography, and professional photography which demonstrated that the drainage diversion had existed for more than 10 years.
In the Darrington Oso landslide, the best forest practices were not used, helping to accumulate the water that super saturated the area of the landslide.
A landslide is usually not just a natural disaster that is unavoidable, but often involves an aspect of negligence. These are tragic cases, with devastated families and communities, and well-funded at-fault parties who will vigorously defend all claims. Only by putting together a team of experienced lawyers and experts can the survivors hope to recover appropriate compensation for their massive losses.
To donate to the victims of the Oso landslide, please go to the American Red Cross site at this link