Mountain Law: Proposed wildfire legislation a game-changer
May 8, 2012
The Lower North Fork fire hit home for me. I grew up in the Evergreen area, and close friends were among the 23 families who lost their homes in the fire that burned more than 4,000 acres. Until just before the fire, my sister had been storing many cherished personal belongings at the home that were nearly lost, and the fire killed several beloved horses. The tragedy is that the fire began March 26, when embers from a state-set controlled burn flared up. This has resulted in interesting legal developments that could set a precedent for wildfires in other cases.
As I wrote in my Oct. 5, 2011 column, “Recovering damages from the government,” there is a law called the Colorado Governmental Immunity Act (CGIA) that prevents individuals from successfully suing the state government in many cases. In simple terms, the government is generally immune from liability for its actions unless it consents to liability by carving out an exception in the law. A prescribed burn does not fit easily into any of the exceptions, making a lawsuit against the state seeking compensation for fire victims difficult or impossible.
Even assuming one of the exceptions were found to apply, the government’s liability under CGIA is limited to a total of $600,000 for any given incident. That’s not a lot of money for 23 families (not to mention other people who suffered damages from the fire but did not lose their homes) to split after the fire. It’s likely many of those people had insurance that covered some or all of their financial damages, but some probably did not.
Because of the harsh impact of CGIA in this case, a state legislator from the Evergreen area proposed a bill that would have created a special commission to review and consider payment of fire claims outside the court system. Critics of the commission – including the state attorney general and the governor – said the commission would violate the state constitution’s ban on “special legislation” that targets only specific individuals and not a broader swath of the public. The critics said the proposed law would have helped only victims of the fire. Proponents of the bill cited case law indicating that the victims of the fire were a big enough group that the law would not be considered special legislation.
The contentious debate over the bill was ended by a compromise recently reached by lawmakers, who are now attempting to rush it through the Legislature before the impending end of the session. Under the deal, a new exception would be carved out under CGIA so that the government would no longer have immunity from lawsuits for prescribed fires that get out of control. That would clear the way for wildfire lawsuits to proceed through the court system without the need for the commission. The $600,000 limit on damages would remain in place under the compromise; however, the state could invoke for the first time a law that allows it to increase payments to victims above the CGIA limit. The increased payments would initially require approval by a special board that considers claims against the government, and would ultimately require approval by the Legislature. The governor appears to be supportive of increasing the payments.
Assuming the compromise becomes law – which seems likely given its bipartisan support – it will create a new legal paradigm. Where victims of out-of-control prescribed burns before the Lower North Fork Fire would have struggled to recover damages from the government because of CGIA, victims of future fires would have a clear ability to make claims. It remains to be seen how much financial responsibility the Legislature will assume above the current $600,000 limit.
Noah Klug is principal of The Klug Law Firm, LLC, a general law practice serving the mountain community that emphasizes business, real estate, and litigation. He may be reached at Noah@TheKlugLawFirm.com or 970-468-4953.
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