After the Slide: Government Communications and Actions

Landslide defense attorney David N. Bruce, co-founding partner of the law firm Savitt Bruce & Willey and former Senior Assistant Attorney for the City of Seattle, recently discussed the interests of government when communicating and acting in the wake of a landslide or natural disaster. His remarks, made at “Landslide Law and Science“, a conference held March 2-3, 2017 in Seattle, with supporting photos and exhibits follow.

Introduction

My thesis is that the government has at least two interests that are in tension with each other in the wake of a landslide or natural disaster.

On the one hand, in my experience, most government actors (staff and policymakers) are in government because they want to do good. We are not living in a fundamentally corrupt state; we live in a place where public servants–at least most of the ones we deal with–actually want to serve the public.

And that means responsive government–undertaking communications, taking actions, and promulgating policies that are what the public wants and/or are in the best interests of the public.

To take an obvious example: in the wake of a landslide, most government actors are going to want to assess the risks going forward and to communicate to the public about those risks.

As we’ll see, there is another interest of government: the fiscal protection of the public. Government actors should and generally do want to be responsible stewards of the public’s money. And doing that job well means managing risk.

But risk management and responsive government are often in tension with each other. This presentation illustrates and explores this tension, summarizes the applicable law, and concludes with some practical advice on what to do about it.

Issues and Risks

Here are some of the situations that most typically present the kind of dilemma for government that I’m talking about, situations in which the government needs to communicate to the public or take other action in the wake of a landslide or natural disaster:

• Most obviously and urgently, the question arises of “what do we tell the public about future risk?” This was well-illustrated in Oso, Washington after the 2006 landslide and has been a recurrent concern for my clients in other situations. Frankly, responsive government seems to demand saying something. Yet, as we’ll see when we dig into this, the risk is that if you say anything at all, you may have to face a jury trial on what you said/didn’t say/did/didn’t do.
• If you start asking the question of what do we tell the public, your staff and policymakers may very quickly get into risk studies or risk mapping. It’s hard to know what to say unless you have some understanding of what the risk is. But even studying or mapping the risk opens up other concerns: what if, for example, you study the risk and determine that existing developed properties are potentially impacted by the next slide? Do those people have to move? If not, what do you tell them?
• This raises the problem of red-tagging–in essentially all jurisdictions, the Building Official has the power to “red tag” to forbid the occupancy of hazardous structures. And of course there are risks here, too: what if the Building Official doesn’t red tag a building that is later demolished by a slide? Is he liable? What if he does red tag a building and someone then contends that he has unlawfully taken their property?
• There’s a related problem as well: what if, in the wake of a landslide, you identify that there is property at risk that has been subdivided but no building permit is yet issued, but people want to build, do you issue the permit? If they want to subdivide, do you allow it? On what conditions?
• And this raises yet another question: if you are in a relatively sophisticated jurisdiction, like Washington, you may already have a critical areas ordinance that gives your Building Officials and Planning Directors all the tools they need to deal with development in areas potentially impacted by a landslide. But if not, policymakers may be faced with pressure, pressure from advocacy groups, or just from citizens, to establish more restrictive regulations–to legislate. How far can you go with that, and what risks does it carry.
• And finally, government is often pushed in the wake of a landslide to build some kind of a public work–to construct something to mitigate future risks. Are there reasons why the government should hesitate to do so other than expense?

These are not all of the situations in which these kinds of problems arise, but they give us a good sense. To look at a few examples of situations in which these problems arise:

• These first three photographs are of a slide in Sitka, Alaska that killed three people. The slide began high up on a mountain above a residential area, traveled down the steep slope, and ran out in this area–demolishing one house, damaging another, and just missing this one. This situation presented most of the problems identified above: the folks in the damaged house want to complete their construction and occupy the house (as did the folks in the near miss house); the neighborhood below (and the elected officials and staff) wanted to understand future risks; and the City has had to look at changes to its regulatory system.

(click to enlarge)

• This next illustration is from 40 years ago. As Seattleites know, there are bluffs above Alki Beach in West Seattle. Periodically–typically after soil gets saturated in winter rains–those bluffs move. This example shows the City considering and rejecting the installation of a public work, a revetment to protect against future landsliding.

(click to enlarge)

• Here, once again, we see government has a dilemma. Decline to spend public money to fix this problem, which is what they did here, and it’s evidence that may later be used in a trial to show that the government knew about the problem and chose to do nothing and therefore should be held responsible. On the other hand, installing a public work is not a panacea. For one thing, you have to pay for it. And there are other problems too, as I’ll explain in a bit.
• Somewhat more recently, in the winter of 1996-97, the City of Seattle had over 100 landslides. This photograph shows what was happening on Magnolia Bluff. In response, the City put together the Seattle Landslide Study, which in a pretty comprehensive way identified landslide types, causes, possible mitigations. It contained all kinds of great and useful information. Really good stuff from a public policy point of view, but also the kind of information that I’ve seen used against governments in some situations.

(click to enlarge)

And then, finally, there’s the Oso slide, which I’ll talk about below in this context as well.

(click to enlarge)

Parties, Interests and the Problem

For policymakers and government staff, responding to landslides presents the same sort of complex demands and constraints as any other public policy problem–with the added challenge of trying to make good decisions in the face of uncertain risks and, in some situations, in the wake of damage, injury, and sometimes even death. Policymakers are trying to respond to groups with varied–and often conflicting–interests. For example:

• Those immediately affected. In the immediate wake of a disaster, the people injured or whose property was damages need emergency services–they need the government to help address basic human needs and to provide a safety net. They may need rescue or recovery. And these are things that all government entities I’ve worked with absolutely will ardently work to provide. Even here, though, there is tension with risk management: who is working with the folks on the ground and those running the emergency response to ensure that they are not making representations about future risk that haven’t been vetted (e.g., it’s safe to go back in there) or making statements that might be construed to suggest that the government has some responsibility for the disaster?
• Adjacent property owners. I have been surprised in some cases to see that what some of these folks want is the go ahead to use their property. They may be resistant to government efforts to gather information about risk and to proceed deliberately. Or they may want reassurance that the government cannot or will not provide.
• Broader community. The broader community will have varied views. They will of course want some reassurance that all is not chaos–that someone is in control and that our fates are not in the hands of capricious nature. (I’m reminded here of Will Durant’s famous line, which I try to work into all of these presentations: “Civilization exists by geological consent, subject to change without notice.”) There will be folks in the broader community who urge the government to do something, do more, regulate, build public works, protect them; there will be others who think that oversteps the government’s role; and obviously, the mix of public views varies from time to time and place to place.
• The business and development communities. On the other hand, developers and the business community are more predictably anti-regulation, and anti-government-action (unless it can benefit them without concomitant expense). Their institutional interest is generally in the development of property, and in appreciation in its value.
• Elected officials and government staff. Some of you may hold a more jaded view, but as I said at the outset, in my experience, government staff and officials really want to do the right thing. They seek to be responsive to their various constituencies; they want to be responsible; they want to be able to sleep at night; and they want to protect the public fiscally.
• The Fourth Estate. I think it’s fair to say that most folks in the media have laudable goals. That said, I have trouble forgetting my grandfather’s insistence that newspapers made money by selling newspapers (or advertising). And controversy drives sales.
• The Lawyers. Finally, speaking of controversy driving sales, where would we be without the lawyers? We, too, often have laudable goals–and we, too, make money from controversy.

So the nature of the problem is simple: there are various factions–interest groups–who have real, important, and divergent issues and concerns. They all want the government to do (or not do) something; to say (or not say something); to fix (or not fix) something; or to regulate (or not regulate) something. And in response, it is not at all clear how the government should act–even resolving the conflicting demands is difficult enough. Worse still for the beleaguered government agency, there is a tension between “good government” and best risk management practices.

The Applicable Law

Frankly, it’s not clear that the law gets us all that far. Below I will step through some of the broad legal principles that frame my thinking when I advise clients about these problems, but at the end of the day, the decisions that government actors have to make about what to say or do in response to a landslide or other natural disaster have more to do with good old common sense then they do with the law.

No liability for permitting development

If you talk to a layperson about landslide cases, early in the conversation they take the position that the government should be held liable for having allowed people to build in a risky area–for having issued a permit to build the house there, or having allowed a subdivision there, etc.

And most lawyers who practice in the area–even my gentle colleagues on the Plaintiffs’ side–will agree that simply isn’t the law in Washington. Phillips v. King County, 136 Wn.2d 946, 960-64 (1998) and other cases make this clear. The government won’t be held liable for the issuance of a permit, in and of itself.

In Alaska, for example, there’s a municipal immunity statute that expressly states that a municipality can’t be held liable for the issuance or denial of a permit (or, for that matter, for zoning decisions, or for other similar land use decisions).

To return to my thesis, recall the folks living on immediately adjacent properties, or in the general area of your landslide. Some of them want a permit to build on their property. Perhaps government staff are concerned about the landslide risk but don’t know what the level of the risk is. Should you issue the permit?

The perverse truth in the law is that issuing the permit may be the best strategy for risk management: the government has clear immunity for its permitting decisions, and if all the government does is issue a permit that someone later claims it should not have issued, the government is going to be immune.

But is that good government? Will your Building Official or other government staff be able to sleep at night if the landslide reactivates and people are injured or property is damaged? Is it the right thing to do?

Again: risk management and responsive government do not neatly align.

Failure to warn

As a general rule, at common law, neither a private individual nor a government has a duty to warn anybody of anything. The common law does not make us, or our government, our brother’s keeper.

So, as a general rule, the government has no actionable duty to prevent or protect from or warn of crime; to prevent or protect from or warn of earthquakes; to prevent or protect from or warn of tsunami or flood; or to prevent or protect from or warn of landslides. In Washington this is so as a matter of the so-called “public duty” doctrine and the common law; and it is generally true in other jurisdictions as well.

But, as with everything in the law, there are exceptions. In Washington a line of cases has developed carving out an exception based primarily on the so-called “rescue doctrine.”

Again, as a general rule, none of us has any obligation to rescue a drowning neighbor, to prevent someone from stepping in front of a bus, or to pull someone from a burning house. But if you do undertake that rescue, you must then discharge with reasonable care the duty that you have taken on gratuitously. In other words, nice guys finish last: if you try to help someone and fail, or don’t do a good enough job, at common law, they can sue you.

Note that this makes absolutely no sense as a matter of sound public policy–it discourages rescue. And it is for precisely that reason that Washington and many other jurisdictions have enacted Good Samaritan laws to shield the kindly-minded among you from being held liable just for trying to rescue someone.

But Good Samaritan laws do not protect the government. And so we come to Brown v. MacPherson’s and to Pszonka (Oso), and another illustration of the crux of our problem.

In Brown, there was a tragic avalanche. Prior to the avalanche, and expert had warned a Washington State employee that plaintiffs’ cabins were in a high-risk area and the state led the expert to believe that the state would deal with it and warn the plaintiffs, so the expert didn’t do anything further. But the state then did not warn the plaintiffs, and the plaintiffs claimed that if the state had acted otherwise, they might have avoided the danger. Relying on the rescue doctrine, the state Supreme Court held that the plaintiffs’ claim against the State should not have been dismissed.

And that brings us to Pszonka–that is, to Oso. There Plaintiffs alleged that in 1999 Dan Miller provided a report which according to Judge Rogoff “indicated the remote possibility of a landslide which would cause serious loss of life in Steelhead Haven.” After the 2006 slide, the County invited residents of Steelhead Haven to a meeting so they could educate them about the risks of future landslides.

Note that this is very different from what happened in Brown. In Brown, the claim was that the State said there wasn’t a risk; here, even the Plaintiffs were saying that the County told the folks at the meeting that landslides were going to continue to occur–the claim was that the County failed to communicate enough about the possibility of a catastrophic slide. And I suspect that the County’s view of what happened at the meeting was very different–that the County’s position was that residents were told at the meeting that the County could not protect them and that they were taking their own risks.

I don’t want to try to resolve that disagreement. Rather, I want to focus on is what Judge Rogoff did. Judge Rogoff concluded that the Plaintiffs had presented enough evidence to create a fact issue about whether the County undertook a duty to warn–not that it did, but that there was a fact dispute about that.

Judge Rogoff went on to say that, in the Oso case, “because no stand-alone duty to warn exists, Plaintiffs theory arguably might discourage the government from attempting to provide any warnings to anyone about anything.” And in spite of that, he allowed this claim to proceed.

Although Judge Rogoff later narrowed the ruling, for the time being it remains, and it presents the dilemma and my thesis starkly:

• According to Judge Rogoff, the best thing for a government entity to do is to not attempt to provide any warnings to anyone about anything!
• On the other hand, is that good and responsive government? Is that really what we want government to do? Can we sleep at night if we take that stance?

Here’s the rub: the answers to the legal questions are pretty clear–the best risk-management strategy is for the government to do nothing. The problem is that actually is not what we, at least in many communities, expect of government.

Other applicable doctrines

First, there is policy-making or discretionary immunity. In Washington, as in many other jurisdictions, the general rule is that the government is immune as to its basic policy-making decisions. The test is:

(1) Does the challenged act … necessarily involve a basic governmental policy, program, or objective? (2) Is the questioned act… essential to the realization or accomplishment of that policy, program, or objective…? (3) Does the act … require the exercise of basic policy evaluation, judgment, and expertise…? (4) Does the governmental agency involved possess the requisite constitutional, (or) statutory… authority… to do or make the challenged act…?

The application of the rule is well illustrated in a pair of cases arising out of the eruption of Mt. St. Helens.

In the first case, Cougar Business Owners, the challenge by business owners in the town of Cougar was that the Governor had been overly protective in imposing a red “no go” zone around the volcano and left it in place too long, damaging their business. The Court held they had no tort claim because of discretionary/policy-making immunity:

“A cause of action for damages such as that brought by appellants is not the proper mode to challenge the Governor’s actions. If it were, a suit could be brought by persons disagreeing with the decisions made contending that Cougar should have been excluded from the restricted zone and other suits contending, at the same time, that Cougar should have been included in the restricted zone earlier.”

The second case, Karr, showed that the state Supreme Court was right: tort plaintiffs sued the State saying it had not done enough to protect them. This claim, too, was rejected on the basis of discretionary immunity.

These cases are no panacea for the government. There will be squabbling about the metes and bounds of discretionary immunity, and if the government goes too far there are also takings claims. Without getting into the detail of the inverse condemnation analysis, I will simply note that:

• This is a body of law you see invoked in these situations as well—not just when property is physically damaged, but when property is devalued by regulation; and
• As a general rule, if a government action, such as a regulation, is a legitimate exercise of the police power, it probably will not be a taking.

Practical Considerations

With such vague guidance from the law, what practical advice is there for government on what to do and how to communicate with the public in the wake of a landslide or other natural disaster? I offer the following general suggestions, recognizing that they are more practical than legal:

First, manage your communications in an intentional manner. There is a significant risk that various government workers–think, for example, of first responders on site–will be talking to the public and the media. It is important that, as nearly as possible, the government speak with a unified voice and based on an intentional and strategic set of decisions.

This requires the formation of a core group to manage the landslide response. Most typically this will include a county or municipal administrator (or similar official); a public works director; a management-level public-safety official; and officials from the building and land use departments.

Other officials may be needed as well. But don’t let your group get too large; get everyone you need, but no more than that. The bigger the group gets, the harder it will be to manage.

Second, as a very general guideline, I encourage government clients to disclose to the public the information they have about natural risks. This is, for the most part, what the clients want to do anyway, in the interests of engaging in good and responsive government.

That said, mitigate your risk as best you can. Disclose the information you have, but with suitable disclaimers. Do not tell citizens “We are going to protect you” or “You don’t need to worry about this,” or “We’ve got this,” or anything remotely resembling those communications. Put otherwise, do not undertake to protect citizens from the foreseeable but unpreventable risk; let them know what you know about risks, but do not go any farther than that.

In doing so–as illustrated in Pszonka–know that you are probably exposing the government to greater litigation risk. And that’s a problem.

But ultimately I have found that, for most of my government clients, concerns about risk-management are trumped by the “sleep at night” rule: they feel, quite appropriately, that regardless of litigation risk they need to conduct themselves in a way that will allow them to sleep at night.

Third, note that infrastructure projects present a special set of considerations. As discussed above, often there will be public pressure to build some kind of public work–a revetment, a catchment structure, a diversionary structure, a dewatering system, or something of the sort–that might reduce the impact of a future landslide. This brings up the Sheehan rule: touch it and you own it.

At baseline, government liability for damage caused by naturally occurring slides is minimal. But if the government builds a project designed to reduce the damage caused by a future slide, the government will certainly be liable if the project is not wholly successful (which can happen for any number of reasons: the project might be poorly designed; decades down the road, policymakers or staff may fail to prioritize its maintenance; or a natural slide might just overwhelm it). When the government undertakes a project designed to reduce natural harm, it needs to consider not just the construction costs but also the maintenance costs over the life of the project and the risk that the project may not succeed, resulting in enhanced liability.

Fourth, be careful with your documents. Don’t destroy documents (again, this is one of the huge lessons of Pszonka), and use the telephone for communications that you don’t want reduced to writing. This is just good legal hygiene.

Fifth, don’t rush. In the wake of a disaster, you will feel tremendous pressure and may be tempted to respond off-the-cuff to a reporter, a citizen, or an elected official. Resist this; take your time whenever possible. Respond with all deliberate speed, not immediately. Most of the time it is fair and reasonable to defer taking a substantive position on an important issue for at least 24 hours. Do this when you can. Most decisions will come out better if you sleep on them.

Finally, exercise great caution in undertaking studies and surveys. The question to ask is the one that I have made the title of the following slide: are you really sure you want to do that?

In the wake of a landslide or other natural disaster, the government will be pressed to make decisions and to provide information about prospective risks. The most natural thing in the world—and it is appropriate as a matter of good business practice—is to study the problem so that policy decisions are well grounded in science and the information provided to the public is grounded in something other than supposition.

But there are, of course, risk-management reasons to proceed with caution. To begin with, it’s possible that the study will create bad evidence. For example, it is possible that your study will identify some government act or omission that caused or contributed to the landslide. You may need to have this information, and you may need to do the study anyway, but you do not want or need to have harmful information developed and disclosed by accident.  Proceed with caution.

Even if the study does not actually create bad evidence, the more the government learns, and the more it gets involved in efforts to manage natural risk, the more the government increases its risk-management profile. The mere act of studying the risk incrementally increases the government’s financial exposure to litigation about the risk. So, again: you may need to do this anyway, but proceed with caution.

These issues do not have easy answers. The best we can do is to ensure that our government policymakers, staff, and consultants are sensitized to them—and that we involve trial counsel early in the process to ensure that all are forewarned about the risks that may be out there. Forewarned is forearmed.

If these observations and opinions suggest a somewhat jaded view of all this, I confess. There is some truth in the adage that nice guys finish last, and that no good deed goes unpunished. But government has an absolutely vital role to play in response to natural disaster. I am not suggesting for a moment that government behave in anything other than a wholly responsive way. Rather, I am insisting that, in doing so, government actors proceed with caution, with good counsel, and with their eyes wide open.

Let’s be careful out there.