The U.S. government has failed to convince a federal judge to dismiss a lawsuit over firefighting tactics that allegedly damaged two Montana ranch properties.

Chief Judge Elaine Kaplan of the U.S. Court of Federal Claims has rejected the government’s arguments the case should be thrown out “as a matter of law,” potentially clearing the way for a trial later this year.

The lawsuit was filed four years ago by McDonough Family Land and Ingersoll Ranch, both of Wolf Creek, Mont., who claimed “backfires and burnouts” by the Forest Service destroyed their private rangeland and timber during a 2017 wildfire.

The ranch companies alleged the agency purposely ignited fires on their land to in an attempt to limit the spread of the Alice Creek Fire and to achieve “resource management objectives,” such as reducing fuels and improving habitat in the 1.9 million-acre Helena-Lewis and Clark National Forest.

Due to these “backfiring and burnout operations,” which consisted of burning vegetation in the wildfire’s path, the McDonough ranch sustained $7.5 million in damages and the Ingersoll ranch sustained about $1.3 million in damages, according to the complaint.

The U.S. government claimed it wasn’t responsible for damaging their private property, as the “firing operations” were under the Montana state government’s jurisdiction, but the judge has decided that argument doesn’t foreclose the case.

The backfiring and burnout orders were ultimately authorized by a Forest Service firefighting commander who directed “incident management teams” under an intergovernmental agreement among state and federal agencies, the judge said.

While it’s possible that state officials “played a more active role” in the backfiring and burnout decisions than the federal government, the “undisputed facts” don’t absolve the Forest Service of potential liability at this point, she said.

The judge dismissed the argument the firing operations were part of an “isolated physical invasion” that should be considered a temporary trespass under the law, rather than an unconstitutional taking by the federal government.

Though the firing operations have “come and gone,” the plaintiffs can pursue a “takings” lawsuit because the damage has still “permanently pre-empted the ranches’ rights to enjoy their timber and range forage,” the ruling said.

Finally, the judge disagreed the ranches didn’t meet the “burden of proof” necessary to proceed with the case because they lack evidence the firing operations actually caused the property damage.

While the government claims the range and timber would have burned either way, the judge said she won’t rule in its favor “only on a paper record.”

Instead, the judge has ordered the parties to propose a joint schedule for further litigation and possible dates for a trial in early October or early December.