A mantelpiece sits on Feb. 8, 2023, amid the rubble of a cabin burned by the Hermits Peak-Calf Canyon fire. A federal judge indicated this week that he would rule on fire victims and seek damages for “non-economic damages” resulting from the federally caused wildfires. (Photo by Patrick Lohmann / Source New Mexico)
Hundreds of millions of dollars could be awarded to victims of the state’s largest wildfire for the hardships they endured as the federally caused wildfire swept through their land in 2022, based on a judge’s comments Tuesday in federal court .
Judge James Browning said at the end of a hearing Tuesday afternoon that he was “leaning” toward ruling on behalf of the fire victims who sued the Federal Emergency Management Agency last year. He said he would make a ruling as soon as possible, but probably not until next month.
If Browning does indeed side with the fire victims, as attorneys on both sides of the courtroom likely expect, FEMA could be required to establish a system to quantify and compensate fire victims, not just for the economic losses they suffered from the state’s largest wildfire, as well as the consequences of the fire. also for the emotional damage.
The deadline to apply for compensation for Hermits Peak-Calf Canyon Fire is December 20, 2024.
For thousands of victims, that could mean additional compensation for the “inconvenience, inconvenience and inconvenience” caused by the “nuisance” or “trespass” caused by the fire, the victims’ lawyers said.
A few others could receive significant compensation for their “pain and suffering” resulting from the physical injuries they suffered in the fire, in addition to medical costs. Until now, filing time-consuming and uncertain lawsuits in federal court has been the only recourse for those who were injured or for the families of those who died in the fire or subsequent flooding.
Gerald Singleton, whose San Diego-based company represents about 1,000 fire victims, estimated that these types of emotional losses could amount to about $400 million.
He also said the payments could result in a fairer distribution of fire compensation funding because renters or low-income people would receive additional compensation beyond just the dollar value for their limited losses in the fire.
Even with the expected ruling, it is not clear how quickly these payments could reach the victims’ bank accounts. Because the legal battle centers around a regulation FEMA created, the agency’s lawyers said in court that it would have to go through an entirely new, formal rulemaking process. That could take months.
The money would come from a nearly $4 billion fund established in September 2022 that members hoped would “fully compensate” victims of the Hermits Peak-Calf Canyon Fire, started earlier that year by two by the federal government prescribed burns that escaped and together destroyed several burns. hundred houses and scorched an area of 534 square kilometers.
As of September 24, the Hermits Peak-Calf Canyon Claims Office had paid $1.35 billion from the fund in 10,417 different claims from households, nonprofits, businesses, and local and tribal governments.
Jay Mitchell, director of the claims agency, attended Tuesday’s half-day court hearing. In a short interview with Source New Mexico After the judge’s comments, Mitchell suggested that the compensation required by the expected ruling could be challenging to implement.
Even though $4 billion seems like a huge amount, “It’s a limited fund,” Mitchell said. He suggested the ruling could open the door to a flood of new claims seeking damages for “nuisance” or “trespass” against people whose properties have been affected by wildfire smoke.
“Smoke goes where it goes,” he said as he walked into a meeting with attorneys representing FEMA after the hearing.
Did Congress intend to limit the damage?
Singleton’s was one of four firms representing dozens of named plaintiffs who sued FEMA last October, alleging the agency wrongly denied so-called “non-economic damages” to fire victims in a latest set of regulations passed last summer published. The rules limited compensation to only economic damages, the kinds of losses that come with a price tag: things like cars, homes, business expenses and livestock.
The rule was based on the agency’s interpretation of the Hermits Peak-Calf Calf Canyon Fire Assistance Act, authored and sponsored by U.S. Rep. Teresa Leger Fernandez and U.S. Sen. Ben Ray Luján, both Democrats from New Mexico.
Luján’s office did not respond to a request for comment. U.S. Sen. Martin Heinrich’s office said the senator would wait until the ruling to weigh in. Leger Fernandez’s office said Source NM she could not comment due to the ongoing litigation, but she is “following the matter closely.”
The victims’ lawsuit alleged that the agency was wrong when it interpreted the act to exclude non-economic damages. To make their argument, attorneys parsed the law’s language to try to determine Congress’ intentions and analyzed state law on the remedies victims would have under New Mexico law if a private company started the fire had ignited and not the federal government.
Months of back and forth between lawyers focused on what Congress intended when they wrote the law. Browning questioned victims’ attorneys and the U.S. Attorney’s Office on Tuesday about what they think Congress meant by terms such as “limited to,” “authorized damages,” “person injured” and “actual compensatory damages.”
For example, the law says that payments “shall be limited to actual compensatory damages.” Victims’ attorneys argued, with numerous citations to New Mexico law and elsewhere, that “actual compensatory damages” has historically meant both economic and non-economic damages. FEMA’s lawyers interpreted the clause to mean that Congress imposed a restriction: only economic damages were allowed.
The trial took place after a High Court hearing pronunciation removing deference to federal agencies when they drafted regulations based on ambiguous laws passed by Congress. It is not clear to what extent the court’s ruling on the so-called “Chevron deference” precedent influenced the judge’s comments. But plaintiffs’ attorney Tom Tosdal repeatedly cited Judge Neil Gorsuch’s ruling in his arguments Tuesday, and the judge wondered aloud whether it applied.
By the time the hearing began Tuesday, Browning said he had already made up his mind on a key aspect of the lawsuit: He agreed that New Mexico law allows non-economic damages to be paid to victims in a scenario like the fire. That’s important because of a provision in the law that requires the calculation of damages to be based on what is allowed under state law.
He quoted one opinion from the New Mexico Attorney General, which concluded that emotional hardship payments are allowed here for victims of “nuisance and trespass.” An official with the New Mexico Department of Justice wrote the opinion after a request from two state legislators shortly after one Source New Mexico And ProPublica article about the legal battle.
Victims’ lawyers can ‘read the law better’, the judge says
In describing his tendency to side with the fire victims over the government, Browning also cited language that attorneys on both sides argued showed Congress’ intent to exclude or rely on emotional hardship payments to take.
One of the sections of the law is called ‘Allowable Damages’ in capital letters and then lists three categories of payments: financial, business or real property. To FEMA’s lawyers, Congress listed all types of allowable payments, which they said in a legal brief were “implied” by the phrase “authorized damages.”
To attorneys for the fire victims, Congress only specified some types of compensation that the law allowed, but did not limit payments to those categories of losses.
The judge agreed: “Plaintiffs can read better,” he said. He took advantage of the fact that FEMA’s lawyers wrote in their letter that Congress “suggested” its intent to limit harm in that part of the law. An implication is not enough, he said.
Browning also said he would try to reach a verdict as quickly as possible, and discussed with lawyers the best way to avoid further delays in getting victims compensation. He cited previous delays in compensation from the claims agency as a reason for his urgency.
“I don’t live under a rock,” he said. “I know there has been a lot of criticism about the slowness of the process.”
