Attorneys are retained for possible Forest Service suit - Albuquerque Journal

Attorneys are retained for possible Forest Service suit

Alyssa Sanchez, a special education teacher at Mora Independent School, stands in what is left of her home in Abuelo, Thursday June 9, 2022. Her home was burned when the Calf Canyon/Hermits Peak Fire swept through the area. (Eddie Moore/Albuquerque Journal)

Copyright © 2022 Albuquerque Journal

MORA – Alyssa Sanchez stood in the ruins of her home in the rural community of Abuelo, pointing out the twisted remains of a house, barn and vehicles destroyed by wildfire on May 1.

Sanchez, 29, grabbed only some clothes and a few personal items when she evacuated April 22, expecting to be back in her home in a week or two. She was shocked to learn that everything was gone.

“I never thought my house would burn,” she said.

Abuelo lies in a valley south of Mora surrounded by steep hills studded with blackened Ponderosa pines. Scars of the Calf Canyon/Hermits Peak Fire twist like black serpents across the hillsides.

Sanchez said she has had no success so far getting relief from the Federal Emergency Management Agency.

“They took pictures so they know what it looks like,” she said of FEMA officials who visited the site. If she doesn’t get compensation, “I’ll fight them.”

Sanchez now is considering whether to join at least 60 others who have signed a retainer with two attorneys laying the groundwork for a lawsuit against the U.S. Forest Service, which oversaw the prescribed burns that ignited the fire.

The blaze has drawn comparisons to the 2000 Cerro Grande Fire that destroyed more than 200 structures in Los Alamos and was also sparked by a prescribed burn set by a federal agency.

Federal legislation passed that same year was able to stem a wave of lawsuits, and U.S. Sen. Ben Ray Luján has introduced a measure modeled on the 2000 law to make northern New Mexico residents whole and perhaps keep them from having to go to court for relief.

But lawyers who met with affected residents Thursday warned that the legislation may not pass as easily as the one in 2000, and they advised residents not to count on being made whole through that process.

First steps

The Calf Canyon/Hermits Peak Fire, New Mexico’s largest recorded wildfire, has grown to more than 318,000 acres in four counties as of Friday, and was 65% contained.

Sanchez works at Hatcha’s Cafe in Mora where about 40 people jammed a dining room Thursday evening to hear the two Albuquerque attorneys discuss their litigation plans.

“The Forest Service may or may not pay you – we just don’t know,” attorney Mark Dow told the ranchers and homeowners eager for information about how the federal government might respond to the massive wildfire.

“I’d rather see us all get paid,” Dow said. “I’m not sure it’s going to happen. In any event, we don’t trust the Forest Service.”

Dow and Albuquerque attorney Antonia Roybal-Mack filed a federal lawsuit Wednesday against the U.S. Forest Service. It alleges the agency failed to respond to a request for detailed information about the controlled burn that ignited the fire.

Dow and Roybal-Mack submitted a request May 4 under the federal Freedom of Information Act, or FOIA, seeking the agency’s plan for the prescribed burn and other information.

To file suit against the Forest Service, attorneys must show that the agency violated its own rules and regulations when it ignited the prescribed burn near Hermits Peak, Roybal-Mack said.

The FOIA lawsuit is a necessary first step in filing a “mass tort” against the U.S. Forest Service on behalf of people damaged by the fire, she said.

The lawsuit will put pressure on the federal government to establish an effective claims process, the attorneys said.

Corinne Dominguez, from Albuquerque, with her son Julian Ardan, 7, asks a question about the cleanup of their family cabin in El Porvenir that was burned by the Calf Canyon/Hermits Peak Fire. They and others are meeting with attorneys at Cornerstone Church in Las Vegas, Thursday June 9, 2022. (Eddie Moore/Albuquerque Journal)

Document everything

A Mora native, Roybal-Mack said members of her own family were displaced by the fire.

Her father, who owns a large chicken farm near Mora, had to evacuate his farm just as hens were laying chicks, costing the lives of many of his birds, she said.

Her mother continues to feel ill effects from the heavy smoke that blanketed the Mora valley, she said.

The lawsuit will face some critical obstacles given the rural nature of the region, where many residents have inherited property passed down for generations, Roybal-Mack said.

During the hourlong meeting at Hatcha’s Cafe, Roybal-Mack advised Mora residents to document their damages to the extent possible.

“You want to take pictures,” she said.

“In three years, you may not remember everything that happened to you. Document everything.”

A key challenge will be to establish valuations for lost property, Roybal-Mack said.

“How do you value 300 acres of Ponderosa pine that’s never going to come back in your lifetime,” she said.

Establishing clear title to property also will be difficult for many. Farms and ranches passed down through generations often lack clear titles.

“Many don’t have deeds, or good deeds,” she said.

Still, other landowners are reluctant to seek help from the government.

“It goes against their core values and beliefs to rely on the government,” she said.

Lessons from Cerro Grande

Dow, 70, has decades of experience with wildfire litigation dating back to the Cerro Grande Fire in 2000, which burned about 48,000 acres, destroyed over 200 structures in Los Alamos and forced the evacuation of more than 18,000 residents.

Cerro Grande caused more than $1 billion in damages, including damage to property at Los Alamos National Laboratory, according to a 2002 LANL report.

Congressional action followed swiftly after the 22-year-old fire.

Then-Sen. Pete Domenici, R-N.M., introduced the Cerro Grande Fire Assistance Act six weeks after the National Park Service initiated a prescribed burn that ignited the fire at Bandelier National Monument on May 4, 2000.

President Bill Clinton signed the bill into law on July 13, 2000. The act established the Office of Cerro Grande Fire Claims, directed by FEMA, to pay claims.

Congress initially appropriated $455 million to pay Cerro Grande claims and two additional appropriations totaling $128 million through February 2003.

FEMA ultimately paid an estimated $587 million for more than 14,000 claims, according to a 2003 General Accounting Office report.

“The Cerro Grande Fire Assistance Act expedited the process of making claims, getting them considered and settled quickly,” said former U.S. Rep. Heather Wilson, R-NM, who was a congresswoman at the time of the Cerro Grande Fire. “Normally, citizens have to go through a lengthy process to sue the federal government for liability.”

The act was approved with bipartisan support from Wilson and then-U.S. Rep. Tom Udall, D-N.M., and then-U.S. Sen. Jeff Bingaman, D-N.M.

“We also benefited from the very strong leadership of both Sen. Bingaman and Sen. Domenici who made sure the Act was incorporated in appropriations bills,” Wilson said in an email. Bingaman and Domenici “did the heavy lifting,” she said.

Bingaman also recalled that the act established an effective claims process following the Cerro Grande Fire.

“That was sure my impression at the time was that FEMA had been very responsive and that the legislation had provided the resources necessary to allow FEMA to be very responsive,” Bingaman said in a phone interview Wednesday.

New Mexico’s congressional delegation introduced a bill in May that bears similarity to the Cerro Grande Fire Assistance Act.

Luján said in May that he modeled the Hermits Peak Fire Assistance Act on the 2000 Cerro Grande act, noting that both fires were ignited by prescribed burns directed by federal agencies.

“While we don’t know the full extent of damage from this catastrophic fire, I’m introducing legislation that would require FEMA to fully compensate New Mexico residents and business owners who’ve been impacted,” Luján said.

The Hermits Peak Fire Assistance Act would require the federal government to cover the costs of the Hermits Peak Fire, including uninsured property loss and lost wages.

House and Senate versions of the bill were introduced May 11. Both bills remain in committee. The Congressional Budget Office has not issued cost estimates for the measures.

Dow agreed that the claims process was fairly smooth following the Cerro Grande Fire.

FEMA set up a single claims office in Los Alamos and brought together representatives of 20 or more major insurance companies, Dow said.

Los Alamos residents tend to be affluent and comfortable working with government agencies, he said.

By contrast, people damaged by the Calf Canyon/Hermits Peak Fire are largely rural farmers and ranchers scattered over a vast area of the state, he said.

In some cases, people may not be able to return to their homes because fire has damaged the land and watershed beyond use, he said. “People that have been there for generations are now displaced,” he said. “Not only do they lose the value of their farm or their ranch or their home, but they can’t go back and rebuild there. It’ll take 10 years for it to come back.”

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