NM fire victims find recourse in court after delays, inaction by Congress, FEMA

Yahoo

12-05-2025

The Cerro Pelado Fire seen from La Bajada Hill on April 29, 2022. (Photo by Shaun Griswold / Source NM)
Those who suffered losses in prescribed burns gone awry in New Mexico's historic 2022 wildfire season are asking the courts to intervene, following what their lawyers say are failures by the federal government and Congress to make victims whole.
In the spring of 2022, the Cerro Pelado Fire, the Hermits Peak Fire and the Calf Canyon Fire escaped containment lines to become runaway wildfires, all of them first ignited by the United States Forest Service as prescribed burns. The Hermits Peak and Calf Canyon Fires merged in late April of that year and grew into the biggest fire in New Mexico history.
In total, the fires burned nearly 400,000 acres, and left livelihoods and homes destroyed in their wake.
Last week, thanks to a federal judge's intervention, a dozen victims of the Hermits Peak-Calf Canyon Fire finally received full compensation, while lawyers representing Cerro Pelado Fire victims recently filed a lawsuit against the United States Forest Service, setting up a difficult battle in federal court.
In the scar of New Mexico's largest wildfire, a legal battle is brewing over the cost of suffering
The court has emerged as a last resort for compensation amid ongoing concerns about the distribution of $5.45 billion compensation fund for Hermits Peak-Calf Canyon Fire victims Congress created in late 2022, along with an unsuccessful effort by members of New Mexico's congressional delegation to create a similar fund for Cerro Pelado Fire victims, lawyers for victims of both fires said in recent interviews.
'Here we are, three years later, after the devastation of the burn scar, my clients finally got their day in court,' Brian Colón, attorney with Singleton Schreiber, a firm representing Hermits Peak-Calf Canyon Fire victims, told Source New Mexico. 'They got compensation awarded for the trespass that the federal government conducted when they were negligent three years ago.'
Federal Judge James Browning took a day and a half last week to listen to testimony from a dozen victims of the Hermits Peak-Calf Canyon Fire, who each described in detail the financial cost and also the emotional toll of the federally caused, 534-square-mile wildfire.
One by one, Judge James Browning ordered the Federal Emergency Management Agency, which oversees the fund Congress created, to award them thousands of dollars. The judge stepped in as part of a 'judicial review' allowed for in the act Congress passed when the parties cannot agree on an appropriate compensation amount.
By the time the victims testified in court, FEMA had offered them low or sometimes no money at all for certain categories of losses. Notably, Browning ordered FEMA to provide the victims so-called noneconomic damages, akin to pain and suffering payments, for the emotional hardship the fire caused. FEMA had provided each of them a final payment offer listing '$0' for noneconomic damages.
Even though last week's hearing involved only a dozen clients, the payments ranging between $9,000 and $330,000 represent a 'watershed' moment and a measure of closure in a legal battle pending for more than a year, Colón said. FEMA initially said the law Congress passed only allowed the agency to pay victims for losses that carry a price tag: burned homes, forgone business revenue and evacuation expenses, for example.
By intervening to hear individual cases, Browning had to evaluate and quantify aspects of victims' experiences such as their proximity to the fire as it was burning; their anguish as they fled the blaze; and the extent of the 'nuisance' and 'trespass' the fire represented on their property.
After federal judge's order, NM fire victims should seek to describe their anguish, lawyer says
Late last year, in a separate, more-sweeping lawsuit, Browning ordered FEMA to begin awarding noneconomic damages, saying in a 99-page ruling that the damages are allowable under New Mexico state law and the law Congress passed.
That order remains pending, and, as with the individual cases Browning ruled on last week, can still be appealed. FEMA and the United States Attorney's Office, which represents the agency in court, have declined to say whether they plan to appeal.
While the victims' lawyers have 'no indication what FEMA's intentions are,' Colón noted that his firm has filed lawsuits on behalf of hundreds of named victims, each of whom could go before Browning in the coming months to seek whatever recourse the judge deems fit to award.
'We're gonna put as many of them in front of Judge Browning as he will permit, in whatever timetable he dictates,' Colón said. 'And we're optimistic that he is going to continue dedicating a very substantial amount of time to try and move these cases forward.'
Browning announced in January he intends to retire in February 2026 after 22 years on the bench.
While the payment of hundreds of millions of dollars in noneconomic damages for all victims who seek them is still pending, the FEMA claims office Congress created is continuing to award compensation for other types of losses.
According to the latest figures, FEMA has paid 16,966 claims totaling $2.35 billion for things like reforestation, business expenses, damaged property and losses local governments incurred responding to the fire.
In enacting the Hermits Peak bill, members of New Mexico's congressional delegation have said they envisioned the accompanying claims office as a way to swiftly and fairly pay victims of the fire without the need for a costly and time-consuming court battle.
A new lawsuit alleges a Forest Service 'cover up' denied people living within the Cerro Pelado Fire the same opportunity.
In late April of this year, lawyers representing 20 plaintiffs, including individual property owners and the Jemez Pueblo and Jemez Mountains Electric Cooperative, filed a lawsuit against the Forest Service for the 46,000-acre fire in the Jemez Mountains, alleging that agency was negligent in failing to monitor the area for still-burning embers in the pile of thinned trees and brush it ignited after the snowpack had melted.
The lawsuit also accuses the Forest Service of covering up its failure to monitor the pile by issuing an initial investigation determining the cause of the fire to be 'inconclusive.' Moreover, the lawsuit says, the Forest Service only ordered a second investigation that ultimately concluded the wildfire had begun as a 'holdover' after a 'whistleblower' and others raised issue with its original determination.
NM federal delegation works to get new compensation pot for Cerro Pelado Fire victims
'The [Forest Service's] cover-up of the actual cause and origin of the wildfire resulted in the victims of the fire being left out of the Hermit's Peak Calf Canyon Fire Assistance Act,' the lawsuit alleges.
A spokesperson for the Forest Service did not respond to a request for comment on the lawsuit Monday afternoon from Source New Mexico.
Chris Bauman, the plaintiffs' lawyer with B&D Law Offices, told Source New Mexico on Monday that even after New Mexico Democrats U.S. Rep. Teresa Leger Fernandez and U.S. Sen. Ben Ray Luján sponsored the Cerro Pelado Fire Assistance Act, he never thought the separate bill had much of a chance of delivering compensation like the Hermits Peak-Calf Canyon Fire Assistance Act did.
'We were told by people that know more about how things work in Washington that it was a long shot,' he said. 'So really we didn't have much expectation, but obviously we were hopeful.'
Winning a lawsuit against the federal government is difficult, Bauman said, due to the 'discretionary function' exemption to the Federal Tort Claims Act. That exemption prohibits the federal government from being liable if employees acted within the scope of their duties during a harmful act.
Bauman's firm needs to prove that the Forest Service employees who lit the fire in January violated a mandatory policy when they failed to notice that the pile of debris they had lit smoldered undetected for months until catching a huge wind gust on April 22, 2022. According to the lawsuit, the burn plan laying out the series of pile burns in the area requires continuous monitoring, especially after the snowpack disappears.
'So that's what we've tried to highlight in our complaint, is that there were multiple instances where they were required to do things under the burn plan and failed to do so,' he said.
Feds try to skirt responsibility in lawsuit for people who died after state's biggest wildfire
It's not clear how much damage the fire caused, in terms of dollars, Bauman said, though he acknowledged it's far less than the Hermits Peak-Calf Canyon Fire. Still, he said, the victims' only recourse is a lawsuit with a high bar to clear.
'The government will probably file the motion to dismiss, claiming lack of jurisdiction because of the discretionary function defense. We anticipate that will be sort of the first challenge to our case,' he said. 'Hopefully we'll survive that.'
Once the information had emerged that the Cerro Pelado Fire had escaped from a pile burn, the state's congressional delegation in October 2023 introduced legislation similar to the Hermits Peak bill to compensate victims. It's been stalled ever since.
Leger Fernandez told Source New Mexico on Monday in an emailed statement that she has not given up on Congress passing the Cerro Pelado Fire Assistance Act and fully compensating those victims like the Hermits Peak-Calf Canyon Fire Act aims to do.
'We continue to push for the Cerro Pelado Fire Assistance Act because the communities harmed by that fire deserve justice—just like the Hermits Peak-Calf Canyon survivors,' she said. 'When Democrats were in the majority, we were able to pass the Hermits Peak legislation because we had leadership in the House, Senate, and White House that prioritized disaster relief. Unfortunately, that's no longer the case.'
Republicans have refused to advance the Cerro Pelado bill 'despite repeated efforts,' she said. She also cited the recent firing of the FEMA administrator a day after he testified that FEMA should still exist.
'It's clear that the Trump White House isn't focused on helping disaster survivors,' she said.
'We're not giving up. We'll keep fighting to get Cerro Pelado survivors the compensation they deserve.'