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Yahoo
12-05-2025
- General
- Yahoo
NM fire victims find recourse in court after delays, inaction by Congress, FEMA
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.'
Yahoo
17-04-2025
- Politics
- Yahoo
NM Highlands University sues FEMA, alleging unnecessary hurdle in way of 2022 wildfire compensation
The student center at New Mexico Highlands University pictured in December 2022. The university is suing the Federal Emergency Management Agency over what it says are unnecessary hurdles to wildfire compensation. (Photo by Patrick Lohmann / Source NM) A public university in Las Vegas, New Mexico is suing the Federal Emergency Management Agency, alleging the agency is illegally forcing it to jump through bureaucratic hoops before it can seek compensation for a wildfire in 2022 caused by the United States Forest Service. New Mexico Highlands University, which has about 2,800 students, is seeking compensation from a $5.45 billion fund Congress created to fully compensate victims of the Hermits Peak-Calf Canyon Fire, the biggest fire in New Mexico history, which started due to two botched prescribed burns on federal land in early 2022. The wildfire burned more than 530 square miles and destroyed several hundred homes. It also upended life at the university, according to a lawsuit filed Tuesday. The lawsuit does not provide a dollar figure, but it lists a variety of losses, including structural damage to university property from flooding and erosion; forced closures; increased insurance premiums; as well as emergency staffing costs for student support and operational expenses. Hermits Peak Fire victims say claims office head offered reassurances about Trump's threatened cuts But rather than applying for compensation made available through the Hermits Peak-Calf Canyon Fire Assistance Act, the university's lawsuit says it is being required to first exhaust another means of covering some of those costs known as the FEMA Public Assistance program. That program is reserved for public entities like local governments and school districts seeking reimbursement for emergency and infrastructure costs they suffered during a disaster. It is also notoriously slow, requiring a seven-step approval process. 'The Public Assistance program is a lengthy discretionary reimbursement program, not a compensation program, that is difficult to navigate, can take years to complete, and will not cover all of Plaintiff's damages,' writes Brian Colón, a former state auditor and lawyer with Singleton Schreiber, which is suing on NMHU's behalf. The City of New Orleans is still awaiting some Public Assistance funds from Hurricane Katrina funds in 2005, according to the lawsuit. Here in New Mexico, six bridges damaged in a 2008 flood in Ruidoso were still awaiting repairs by the time post-fire flooding occurred there last year, delays local officials attribute, in part, to Public Assistance challenges. Flash floods poised to continue in disaster areas through monsoon season And the state of New Mexico has awarded $170 million in zero-interest loans in recent years to local governments affected by various recent disasters, a measure meant to counteract delays associated with the FEMA program. Since President Donald Trump took office in January, approval for Public Assistance has also become less certain. This week, FEMA declined to cover 100% of the Public Assistance costs incurred from Hurricane Helene in North Carolina and denied the state of Washington's request for disaster assistance, including Public Assistance, following a bomb cyclone there last year. Colón, in a brief interview Thursday, said he was unaware of any additional delays or denials for public entities affected by the Hermits Peak-Calf Canyon Fire since Trump took office. FEMA officials did not immediately respond to a comment about that or the lawsuit generally on Thursday. The university is not the first public entity in and around the burn scar to sue FEMA for requiring the extra step. Other plaintiffs include the Mora-San Miguel Electrical Co-operative, Las Vegas City Schools, and the Mora Independent School District. Those cases are all still pending. As of April 15, the Hermits Peak-Calf Canyon Fire Claims Office has paid out $2.25 billion in compensation to individuals, businesses, nonprofits and local governments, which amounts to about 41% of the $5.45 billion Congress awarded. That figure includes $137 million to local governments, most of which was a single payment of $98 million to the City of Las Vegas to replace its water treatment facilities. The amount paid out via FEMA Public Assistance money is less clear. According to a FEMA website, the agency has obligated a little more than $170 million to local public entities that incurred costs related to the wildfire disaster in New Mexico in 2022. That money goes to public entities in the Hermits Peak-Calf Canyon Fire burn scar but also other wildfires that erupted in the state in spring 2022, and it's not clear how much has been actually paid, not just obligated, so far.
Yahoo
01-03-2025
- Business
- Yahoo
Senate approves bill creating new state fund for emergency disaster loans
Feb. 28—SANTA FE — After recent wildfires burned large swaths of New Mexico, lawmakers authorized hefty zero-interest loans to help local governments with rebuilding efforts. Such a natural disaster loan program would be made permanent in state law with a recurring balance of $150 million, under a bill approved Friday by the state Senate via a 37-0 vote. "For the last two or three years, we've been reactive to fires in New Mexico," Sen. George Muñoz, D-Gallup, the chairman of the Senate Finance Committee, said during Friday's debate. "This is really a proactive response to how we set ourselves up for the future," he added. The issuance of state loans for disaster relief efforts is intended to jumpstart recovery efforts of roads, bridges, culverts and other public infrastructure while the state waits — sometimes for extended periods of time — for federal emergency funds to be distributed. The loans are then paid back to the state. Lawmakers last summer approved up to $70 million in zero-interest loans to fund repair work in the Ruidoso area, following a devastating fire and subsequent flooding. A year earlier, legislators approved $100 million to expedite recovery efforts in the burn scar of the Calf Canyon/Hermits Peak Fire — the largest in state history. Nearly all of the $100 million in loans authorized for repair projects connected to that northern New Mexico fire were ultimately issued, though it took the state Department of Finance and Administration more than a year to finish distributing the money. In large part, that's because qualifying projects must first receive approval from the Federal Emergency Management Agency before the state can issue a loan, a process that can take longer than many local officials would prefer. Under the bill that now advances to the House of Representatives, Senate Bill 31, the new fund would be created to provide zero-interest loans following federally declared natural disasters. The fund would get money from a separate reserve account in the state treasury over the next three years, with the aim of keeping a $150 million balance available. The two state agencies that would be tasked with implementing the fund — the state Department of Homeland Security and Emergency Management and the Department of Finance and Administration — both indicated Friday they support the legislation. The state currently has about $2 billion worth of eligible projects from previous natural disasters, said DHSEM spokeswoman Danielle Silva. "We can't stop disasters from happening, but we can and should do as much as possible to prepare for them," Silva told the Journal.
