News Nugget
Forest Service Wins $10 Million for ‘Natural Resource’ Damage from Wildfire
By Courtney Lowery, 7-29-09
This is the second settlement of this kind, setting an interesting trend in wildfire litigation:
As the L.A. Times reports today, Pacific Gas & Electric Co. has agreed to pay the U.S. Forest Service $14.75 million in a settlement over a 1999 fire in California that burned 11,725 acres, 3,866 of them on Forest Service land. The fire started when an old Ponderosa Pine fell on a PG&E power line, an event that the Forest Service argued could have been prevented had the utility removed the dead and rotting tree.
From a press release from the U.S. Attorney’s office that handled the case:
“The fire caused substantial damage to National Forest Systems lands, including harm to ecological habitat and loss of timber values, and required forest restoration efforts that continue to date. The U.S. Attorney’s office says most of the money will go to the two national forests involved in the fire, the Plumas and the Tahoe, to fund restoration work. More than $10 million of the settlement is to compensate the United States for damages to its natural resources.”
Total, the government paid $4.2 million to fight the fire.
The settlement comes after a similar case last year involving Union Pacific Railroad. In that case the railroad agreed to pay $102 million to the U.S. Forest Service for the August, 2000 52,000-acre Storrie Fire, also on the Plumas National Forest, which was started by UP crews working on a rail line.
In a 2008 McClatchy newspapers report on that case, the settlement was called “landmark” because the judge ruled that UP not only had to pay for restoration, firefighting costs and lost timber harvest, but also for “the loss of public scenery and recreation and habitat and wildlife.”
McClatchy reported at the time that the case had “convinced authorities in Washington, DC, to create three new “fire litigation teams” to pursue such cases throughout the West.”
So, this case is not likely to be the last.
[End of article]So what utility would now not examine their rights of way, and ensure that there were no trees that could ever hit a transmission line? The case was won on a Federal lands lawsuit brought for the USFS. The case law will certainly be a citation in any dispute about a fire from a tree over a utility line. That is huge. It is a game changer. In a city with a forest-like cover of trees, and a storm, any indication of rot, and about every deciduous trees shows some, will have the tree owner or the power company at risk for litigation and costs.
You can rest assured PGE will cut every tree that could ever reach a power line on public land R/W. Add that to the train deal, and you can see the US Govt is out to get private money for fires and repair. The joke is that you or I can't sue them when their fire damages us. Even in the most egregious case of bumbling neglect. The people can only sue the US Govt with their permission. NEPA, and all the land management law give that permission for USFS actions of significance. But those are limited to actions on public land. You can stop them from starting a fire, but you can't collect damages from them if they do anyway and the fire burns your asset.
The irony here is truly staggering, and on so many levels. As bearbait pointed out, you can't sue the FS if they burn down your house because their "controlled burn" got out of control, clearly that's a right they hold only for themselves.
I love the monetary damage for "loss of timber values". Yeah right, like they were going to be clear cutting those acres.
And the amounts. Give me a break. 3800 acres equate to 10 million dollars. Wow, let's start applying that formula to all the fires we let burn that got out of control and see how that adds up on the old cash register.
Wow, let me get the rust flakes out of my eyes. This is unbelievable.
Comment By BeckyJ, 7-29-09Why is it that when the fire starts on National Forest it is good for the environment and when it starts somewhere else it's bad? The tons of soil that gets into the river as a result of land slides following forest fires is good, but following logging or road building is bad? If lightening strikes my property and, even though I was so Fire Wise they didn't have to put sprinklers around my cabin, starts a fire in trees that burned from their fire and gets off my property onto the National Forest, I have to pay to put it out and for their damaged trees but I just have to live with the trees they burned on my property and the one they cut down after I told them I'd rather bulldoze the cabin than cut down that particular landscape tree (which didn't burn even after drying for 3 weeks before the fire got to my property)?
Comment By bearbait, 7-30-09Now having a day to digest this revealing lawsuit, decision, and awarded damages, I have some fundamental questions about the relationship between public lands and the counties in which they lay.
I would opine that the county or counties in which the fire occurred should be given 25% of the award, and if not, should sue for it. After all, the public resources destroyed only have value in a market, as the "arm's length buyer-seller" transaction is the only way that a value can be obtained. The "resource" was sold, in the form of damages awarded, and the law firmly states that 25% of the gross value of the sale, the damage award, is due and payable to the county of origin. There would be room to maneuver in the "expenses" the USFS incurred to put out the fire, but not the restoration. They do that out of their income from the "sale" of the resources to the defendant.
Then I would take that a wee bit further. If fire "for resource benefit" is to be believed, the benefit has to be accounted for in dollars. This case and the one before it, are citations of merit for damages in dollars. There is value in timber, in habitat, in "the grandeur of the landscape", in watershed values lost to fire. So it would follow that an appraisal of loss and gain, in resource value, must be established before the USFS or other Federal land managers arbitrarily don't fight fire, with fire fighting being a raison d'etre for agency existence, and resource protection another. That calls for a process, and NEPA was supposed to have been the process. Each particular area deemed needing unrestrained fire must first have an appraisal of all the values extant, and then an accounting of what the gains will be from fire as opposed to the resources that will be lost. The establishment of a net gain must be produced in order to protect the resource, and the monetary investment in lieu of taxes the counties are to receive from revenues gained on the land in their county.
Every county has a dog in the fight if they have Federal lands that are subject to resource sale, lease, rents, royalty payment sharing. It would follow that they have a stake and standing in resource value protection because it all has possible and probable value sharing at some time. When those values are purposefully lost to management decisions NOT including the county of origin, the county has a vested interest to lose. Until now, with two court decisions valuing resource losses, both tangible and intangible, the counties have a base with with to value what they lose in a "fire for resource benefit" decision that does not evaluate the probable gains with the probable losses. That exercise would be, at the least, a due diligence and contractual exercise to respect the counties interests in the resources that are to be gained or lost to a "fire for resource benefit." It is a deal about dollars. That is the gist of the two court cases. The Feds have established that there are dollar valued, appraisable resources lost to fire. That is a significant management decision to be studied as per NEPA, and the host of other Federal land management laws, and the ESA.
Hypocrisy is not a good management tool, goal, or mandate. We need a US Sec of Agriculture who speaks the truth, searches for the truth, and believes that every county hosting public lands has a vested monetary interest in the resources being squandered in purposeful fire. Until an appraisal of the values that support a Federal damage claim against the private estate for damage by negligent fire from private lands are applied to Federal land to be burned over by purposeful action on the part of Federal land managers, the public is being deceived. Lied to. Their trust, and those trust lands, is being destroyed by Federal negligence and deceit. That is the findings of the US District Court. Landscapes have a value that can be expressed in dollars. I want to see the appraisal for "fire for resource use."
So a forlorn female Forest Service employee torches 187,000 acres as well as numerous privately-owned structures in Colorado after burning her "Dear Dahling" note in a Forest Service campground. In an "Approved Fire Pit" too! State Farm Insurance, after paying tens of millions in claims sues the U.S.F.S. for its losses due to the actions of the U.S.F.S. employee.
In some twisted, semi-psychotic and rather stupifying argument, the Forest Service attorneys argued that the Government was not liable because the dear girl performed an act that wasn't listed as one of her charged duties that day. Even more stupifying was that the so-called Judge, whose salary is paid by that one same Government, thought that the U.S.F.S. attorneys argument was brilliant, so brilliant in fact that he decided that just because an employee who is on the clock screws up in a rather big way, the employer, if, and only if it is the employer is the Federal Government, is not liable for any errors said employee may commit.
Unbelievably, State Farm Insurance lost the case.
"They hate us because of our freedoms."
Try on this scenario. Some outfit called "Joe the Plumber" has one employee, this one licensed, and he is sent out on a call and told to go nowhere except to the job site and back. "Jack the Plumber" we'll call him, stops at the convenience store for a coffee (not on his daily duty list) and upon exiting, backs into the fuel pumps in a "Joe the Plumbers" van. As fate would have it, an explosion and fire follows, leveling the convenience store and every other building in a neighboring strip mall. Miraculously, no one is killed or injured, but the damage is in the tens of millions and we all know who done the dirty deed - "Jack", Joe the Plumber's employee.
Shortly thereafter, sharp-dressed sharks hop into the legal waters and Joe knows what's coming. He shaves his head trying to go incognito, and attempts to sneak out of town. Unfortunately for Joe, the waters are deep and Joe isn't much of a swimmer. He's served papers and then served up like a Thanksgiving turkey, because under Tort Law, Joe the Plumber is liable for what his employee Jack did, even if Jack was expressly instructed to not do what he did while at work that fateful day.
Joe is screwed, just like any of the rest of us "subjects".
Bankruptcy soon follows, and Joe finds himself standing on a street corner holding a "Will Plumb for Food" sign when a Presidential Candidate happens by and his fortunes change, at least briefly. His "Warhol Moment", so to speak. I think he's gone now...
But the King? Why of course not. The King and his employees can do no wrong, regardless of what trail of death and destruction they leave in their wake, regardless of intent.
We hit the button on the Wayback Machine to the fateful year of 2000. Fires rage all over the Northern Rockies. This time, U.S.F.S. employees were doing what they were told to do, and this time it actually was "Start a fire".
Unlike the spurned female in Colorado who lit a fire without permission and well outside the scope of her assigned duties, these guys were lighting up with blessings from the boss. At the time, there wasn't anyone in the radius of a hundred miles who would have said "Just say no!" But as bad luck would have it, the law of unintended consequences kicked in and the backfire these fellas set took on a mind of its own and proceeded to burn down a bunch of houses. Damn!
Well, this was surely different than the Colorado fire. Broken hearts were about to happen, but they weren't the cause of the conflagration. The intentions were noble but the consequences weren't. Sifting through the charred embers, many of these homeowners thought, "The Government burned down my house, therefore they should pay for my losses." There's some "Joe the Plumber" logic in play here, you see...
"Wrong, wrong, wrong!", sayeth the Magistrate. "The Gubbermint isn't liable for nuthin!", he paraphrased himself. So the litigating Bitterrooters left the courthouse bitter, headed up river and looked once more at the remains of the day, and their chimneys. I'm sick of those pictures. Houseless chimneys. Three Little Pigs and a brick house. Hmmmm......
Light it by accident and burn down houses - not liable. Light it deliberately and burn down houses - not liable. Spark from your campfire? Just go shave your head and make up a "Will work for food" sign. A wind comes up suddenly and that little burn-pile gets just a bit bigger than you thought? You are flat-out doomed.
There is no moral here because we live in a country with no morals, but there is an anecdote from all this worth remembering- "All the Kings horses and all the Kings men don't have to put Humpty Dumpty back together again, even if they were the one's who broke him." And don't you forget it.
Have a nice day.
When you finally "see the light", more often than not it is someone in the wrong lane coming at you, or a train and you are in its tunnel, or you are about to experience that shudder that comes with knowing how frigging dumb you have been for so long. That "loving' feeling" you get when you know you are had.
I once spent two legislative sessions, one with Democrats in control and another with Republicans in control. lobbying to have the worker's comp law changed concerning to traffic accidents. If you are a roofer and you pay the highest comp rates of a dollar of insurance for a dollar of wages paid, or you are a paint store, and pay a penny of comp for every dollar of wages, and your employee is working, driving your rig, and gets T-boned by a red light runner illegal alien with no insurance, not to worry. It is a comp claim. Your employee's care and recovery will be paid for by your workers comp insurance. All that an employer can file on the "no fault" insurance we all are required to buy is the damage to the rig your employee was driving and the cargo if any. And if your employee is permanently disabled, and has hundreds of thousands of dollars in medical bills, your experience rating will rise by the maximum: it will double. The paint store guy will pay two pennies on a dollar of wages, and the roofer will pay two dollars for comp for every dollar of wages.
The chance of becoming an auto accident victim was no more or no less for either worker, and the employer had NO control of the workplace (driving the car) in which the employee was carrying out his or her job. The chance of being in a wreck where you were not speeding, intoxicated, driving erratically, ad nauseum, is equal to all people who drive. Same chance. And that was all I wanted changed in the law. Having someone hit your employee running a red light, and that accident putting you out of business while another has to pay only a penny more per dollar of wages, is not right. It is a work place accident that happens in a neutral environment, common to all. So all insured employers should be paying the same amount per employee per day for that harm or possibility of that harm. Wrong.
So the Democrats told me that they couldn't change the law because it might cheat victims out of their right to sue for civil damages (a headshaker) and the Republicans said that the proposed bill would attract bad amendments from the Democrats who would raise spending, "decorate it like a Christmas tree." And the law has never changed. America is rigged. Congress or State Legislature. Rigged against the people and for government. Right now the Unions, trial lawyers, and Mega Financial companies and Insurance companies have government bought and paid for.
You can't sue the Feds unless they say you can. They say you can't. So change the Constitution. That is your only relief.