05/20/2022
The appalling wildfires burning many of Northern New Mexico’s last best places are hard to accept and harder to understand. In at least two cases, but probably in each case, prescribed fires ignited on purpose by Forest Service officers escaped project control lines and are burning unchecked from Las Vegas through Mora and headed for Taos. The Pecos Wilderness is utterly changed.
Hermit’s Peak wildfire began as Las Dispensas prescribed fire when the Pecos/Las Vegas Ranger gave the go-ahead to firefighters to burn in winds predicted to gust to 25 mph with relative humidity from 9-13 percent. High winds. Low humidity. A recipe for disaster and quite predictable, especially since it happened before. The Forest Service says the wind was a big surprise. The weather data says different. In any event, they lit it and now it’s a monster.
It happened 22 years ago on May 10, 2000, when firefighters lit a prescribed fire at Bandelier National Monument south of Los Alamos, NM. The Cerro Grande fire roared into Los Alamos city limits at Trinity Drive, named for the first atomic bomb tests, and burned 235 homes. The government, to its great credit, took responsibility for the damage and FEMA was allowed to help everyone damaged by the fire to rebuild and recover 100 percent.
What’s good for Los Alamos is good for Mora and Guadalupita and so many other tiny communities in the path of this human-caused disaster. Environmental justice demands that FEMA do for Northern New Mexicans what it did for Los Alamos; speedily act to make people whole, but-for-the-fires. It would be more than troubling if 235 Ph.Ds. in Los Alamos were treated differently than the children of the first peoples and the now-indigenous Hispanic peoples. Rumor is our elected officials are already working on this. The alternatives available to claim damages are very difficult.
Firefighters have vast discretion to take all kinds of actions, including to do patently stupid stuff. If they followed the letter of their non-discretionary prescribed burn plans down to the tiniest minutiae, they are probably not open to civil damages, either personally or at the agency level. If their equipment was improperly staffed, if they used the wrong fuel model, or if they ignored National Weather Service data, they have no discretionary function exception and can be sued.
This same scenario played out in South Dakota in 2012 in Eric and Laurie Casper v. United States when a Forest Service prescribed fire damaged several ranchers who sued and won badly needed cash settlements. New Mexicans need to see the Calf Canyon/Hermit’s Peak prescribed burn plans now. They are public records available under the Freedom of Information Act (FOIA) and are neither secret nor exempt.
Injured parties can file tort claims under the Federal Tort Claims Act (FTCA). People have two years following the date of the damage to land, person, and/or property to file a Standard Form 95 detailing damages. Competent tort lawyers can fill in the details. Attorneys often take these cases on contingency.
Another approach is to sue the Forest Service under the Tucker Act which covers inverse condemnation. When officers of the United States seize your property while achieving some public purpose, they must compensate you for your losses. By igniting prescribed fires to manage public forests, the Forest Service used your property by burning it to achieve their purposes. You have six years following the fire to file under the Tucker Act. This is an expensive undertaking, but the government must pay attorney fees and expert fees when they lose.
The last remedy is to accept what paltry help FEMA and other local, state, and federal entities can provide and then build back as best you can with what you have. FEMA can and must rehabilitate victims to a condition the day before the fire.
It’s time to call your Congressional leaders and Governor Lujan Grisham and demand that you be made whole. It’s equitable. It’s fair. It’s justice.
