Hermit’s Peak/Calf Canyon Fire
ALBUQUERQUE, N.M. - Dozens of New Mexico residents unhappy with their financial recovery have sued the Federal Emergency Management Agency over property damage caused by the largest wildfire in state history and, for now, have a key ruling on their side in their quest for emotional damages.
People like Melody Ann Haver, who filed suit against FEMA on July 2 in New Mexico federal court two months after receiving less money than she wanted from a $4 billion fund for victims of the Hermit's Peak/Calf Canyon Fire, seek money for more than just property damage.
The 2022 fire started as two separate and both were caused by the U.S. Forest Service. Two became one, and the fire burned more than 340,000 acres and destroyed more than 900 structures, leading Congress to enact the Hermit's Peak/Calf Canyon Fire Assistance Act (HPFAA).
Haver, who is also suing on behalf of her deceased husband Rex, submitted claims to FEMA but a May 5 ruling by the agency left her needing more. She seeks money for noneconomic damages and reforestation.
FEMA is the fund's administrator, and the laws of New Mexico apply to the calculation of damages, the HPFAA says.
"Under New Mexico law, a wildfire that damages or disrupts the real or personal property of a landowner is a 'nuisance' and may also constitute a trespass," the suit says.
"Under New Mexico law, nuisance and trespass victims are entitled to noneconomic damages for interference with personal comfort, annoyance, and inconvenience in addition to their economic losses."
Antonia Roybal-Mack of Roybal-Mack & Cordova in Albuquerque represents Haver, as does Ian Cloud of Robins Cloud in Houston.
FEMA has been sued nearly 40 times over payouts. In December, Judge James Browning ordered FEMA to pay noneconomic damages to claimants even though the act creating the fund precluded it.
"FEMA's decision not to allow noneconomic damage awards, therefore, constitutes an agency action that is 'unlawfully withheld...'" he wrote in a 99-page opinion.
"The Court compels FEMA to award noneconomic damages for the plaintiffs' claims, such as for emotional pain and suffering, under the Hermit's Peak Act."
FEMA subsequently filed a motion to amend/alter his decision, which Browning has not yet ruled on. FEMA says the fire was not a nuisance because under New Mexico law, a prescribed burn is considered in the public interest.
Of course, this prescribed burn blazed far beyond what the Forest Service intended.
"By concluding that prescribed burns are ultrahazardous activities and that the Forest Service's handling of the HPCC Fire was negligent and reckless - particularly without record evidence or the litigation of this issue - the opinion may deter the government and others from crucial efforts to reduce fire risks," FEMA says.
