From Fire Comes Life: Why Courts Assessing Forest Fire Damages Should Recognize Ecological Benefits

• Date: 01 July 2016

46 ELR 10608 ENVIRONMENTAL LAW REPORTER 7-2016

From Fire Comes

Life: Why Courts

Assessing Forest

Fire Damages

Should Recognize

Ecological

Benef‌its

by Amanda Hemmerich

Amanda Hemmerich is a 2016 graduate of the

University of Maine School of Law. Prior to attending

law school, she was a wildland reghter.



Recent court decisions have awarded the federal gov-

ernment substantial recovery for damages from forest

res caused by a private party’s negligent conduct. In

traditional forest re cases, plaintis typically recov-

ered response and suppression costs, in addition to

compensation for the value of damaged timber or

restoration costs. By framing forest re impacts as

“natural resource damages” and “intangible environ-

mental damages,” the federal government has recov-

ered increasingly large amounts for alleged harm to the

environment and the value of lost ecosystem services.

But a signicant point of contention is whether there

is injury to the natural environment or loss of ecologi-

cal services following an unintentional forest re that

mimics a naturally occurring re regime. Fire is an

integral part of ecological landscapes and should be

distinguished from traditional natural resource dam-

ages because of its benecial eects. Forest re damages

should be evaluated under a framework that factors

both benecial and adverse impacts into recovery.

Over the pa st decade, the federal g overnment ha s

used state law to become increa singly aggressive

in obtaini ng signicant judgments1 and settle-

ments2 in forest re cases. In 2012, t he federal govern-

ment settled a case against California’s largest private

landholder, Sierra Pacic Industries, Inc., and several

other timber industry defendants for an estimated

$122.5 million.3 In th is case, the U.S. Department of

Justice (DOJ) initia lly sought to recover damages close

to $1 billion resulting from the Moonl ight Fire, a re

that started on private land and then spre ad into two

national forests where it burned over 4 6,000 acres. e

increased dema nd for monetar y recovery was par tly

based on “compensation for the degradation of natur al

resources (recreational and habitat values, for example)

while the burned forest recovers from the re.”4 is is

only t he most recent deci sion in whic h the federal gov-

ernment ha s been successf ul in recovering noneconomic

damag es to federa l lands resulting from negligent res

caused by private pa rties.

While recovery of environmental damages was histori-

cally limited to resources that provided quantiable eco-

nomic products (chiey timber), there has been a growing

recognition in the last few decades that natural resources,

as ecosystems, provide a wider array of ser vices to society

than merely serving as a source of raw materials.5 It is not

surprising that federal courts now acknowledge the legiti-

macy of recoverable damages for habitat and ecological

service losses resulting from forest res, with some cla ims

1.  United States v. Union Pac. R.R. Co., 565 F. Supp. 2d 1136 (E.D. Cal.

2008); United States v. CB & I Constructors, Inc., 685 F.3d 827, 42 ELR

20146 (9th Cir. 2012).

2.  Elizabeth Warmerdam, ,

C N S., June 7, 2013, http://www.courthousenews.

com/2013/06/07/58340.htm (discussing agreement by Pacic Gas & Elec-

tric Co. and its contractors to pay the U.S. government to settle allegations

of negligence in causing two forest res in 2004 on federal land).

3. United States v. Sierra Pac. Indus., Inc., 879 F. Supp. 2d 1096 (E.D. Cal.

2012).

4. Letter from Benjamin B. Wagner, U .S. At torney, E.D. Cal., to Hon.

Darrell Steinberg, Pres. Pro Tempore, Cal. State Senate, and John A.

Perez, Speaker, Cal. Assembly, Re: Trailer Bill Language for the Natural

Resources and Capita l Outlay Area of the Governor’s Proposed Budget

(Part 777—Timber Harves t Reform) (May 25, 2012), available at h ttp://

www.wildcalifornia.org/w p-content/uploads/2012/06 /US_Atty_Letter_

05.25.12.pdf.

5. James Peck,      -

ing Natural Resources Damages, 14 J. L U  E. L. 275, 277-78

(1999).



         

        

       

           

rening this Article. Most importantly, I would like to thank my



Copyright © 2016 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

7-2016 NEWS & ANALYSIS 46 ELR 10609

placing higher economic value on ecosystem services than

on traditional forest products.6

Existing state statutes and rec ent lawsuits set legal

precedents for recovering damages that c ould allow

double or triple damag es7 for damaged timber as well

as signicant nancial liability for d amage s to the nat-

ural environment, including losses associated with rec-

reational use a nd “intang ible” environmenta l losses.8

Recent federal decisions have allowed partie s to recover

damag es from forest res to compensate for lost environ-

mental services (for example, habitat, hydrologica l fu nc-

tion, sediment control, and carbon sequestration) based

on state laws and regulations, in addition to claims for

compensation of more traditional good s and ser vices (for

example, forest restoration,  re suppre ssion, lost timber,

and lost property).9

e federal government has begu n to frame the eects

of forest res as “natural resource damages,”10 “intangible

environmental damage,”11 and “environmental and ecolog-

ical da mages”12 by a lleging harm to the environment and

seeking recovery for the value of lost ecosystem services.

However, natural resource damage claims have predomi-

nantly been associated with releases of hazardous sub-

stances or oil spills, not forest res, and are recovered under

federal laws such as the Comprehensive Environmental

Response, Compensation, and Liability Act (CERCLA).13

Yet it is clear from recent decisions that courts are willing

to expand the common-law concepts of damage and harm

to encompass forest res and permit recovery of damages

to the natural environment.

ese nat ural resourc e damages create a new category

of compensable damages with a broad range of poten-

tial monet ary losses, where no quant icat ion method

6. David A. Hanson et al., Adapting Habitat Equivalency Analysis (HEA) to

      

Forest Fires, 294 F E  M. 166 (2013); see, e.g.,  

I Constructors, Inc., 685 F.3d at 837 (arming the district court’s decision

that under California law the government could recover damages for all of

the damages caused by re, including intangible harm to the environment);

United States v. Union Pac. R.R. Co., 565 F. Supp. 2d 1136, 1144 (E.D.

Cal. 2008) (holding that the United States is entitled to recover damages

caused by re, including separate injuries to trees, soil, reforestation, and

pre-merchantable timber costs).

7.  e.g., O. R. S. §477.089(2)(b) (West 2013); C. C. C

§3346(a) (West 1997).

8. omas Deardor & Svetlana Semenova, Exponent, Environmental Dam-

ages Associated With Wildland Fires (2014), available at http://www.expo-

nent.com/les/Uploads/Documents/Newsletters/EP_2014_Vol1.pdf.

9. Steven S. Kimball, Forest Fire Damages in Transition, 56 F. L. 38

(2009).

10. , 565 F. Supp. 2d at 1138.

11. , 685 F.3d at 829.

12. United States v. Sierra Pac. Indus., No. CIV S-09-2445 KJM-EFB, 2012

WL 1898945 *1, *1 (E.D. Cal. May 23, 2012).

13. 42 U.S.C. §§9601-9675, ELR S. CERCLA §§101-405; see 42 U.S.C.

§§9601, 9607(a) (2006) (providing liability for damages resulting from in-

jury to natural resources).

has recogn ized the ecological role of re. Under certain

federa l and state statutes, the federal government can

recover noneconomic damages that result from inju-

ries to natural resources .14 ese types of damages are

premised on restoring the natural resource to its prior

condition and compensati ng the public for the loss in

services associated with natu ral resource injuries. How-

ever, a signicant point of contention is whe ther there

is an actual injury to the natural environment or los s

of any ecologic al servic e follow ing an unintentiona l for-

est re th at mimic s a naturally occurring re regime.15

erefore, it is important to underst and the role of re

as an ec osystem proces s and properly chara cterize how

a forest ecosy stem is aected by re in order to assess

liability for potentia l re damages.

is Article addresses the legal and scientic complexi-

ties of forest re cases being framed as natural resource

“damage” claims, and considers whether the traditional

natural resource damage methodologies are appropriate for

measuring forest re damages. e purpose of the Article is

to highlight the uniqueness of re events and propose that

the law determine forest re damages based on ecological

principles that account for both re’s benecial and adverse

impacts when assessing damage s.

Part I of the Article provides some contex t for under-

standing how the natural environment is characterized

and an overview of current valuation methods. Part II

discusses specic statutory provisions governing liability

for negligently caused res and cost recovery for forest re

damages. Part III discusses how re damage s were tradi-

tionally measured and the transition towa rd recoverable

damages for environmental harm. Part IV addresses the

ecological signicance of re, and Part V discusses the

application of natural resource valuation methods to for-

est re dama ges. Finally, the Ar ticle concludes that recov-

erable damages should ta ke the ecologic al role of re into

consideration becau se re is an integra l part of ecological

processes and is d istinct in its ability to provide both ben-

ecial and adverse eects.

14. Robin A. Cantor et al., Exponent, 

and Dynamic Ecosystems (2011), available at http://announce.exponent.

com/feature/wildlandre/NRDA.pdf.   Dave Owen, e Biggest

 , E. L. P-

 B, Aug. 2, 2012, at http://lawprofessors.typepad.com/environmen-

tal_law/2012/08/the-biggest-natural-resource-damages-case-youve-never-

heard-of.html.

15. A re regime “[d]escribes the patterns of re seasonality, frequency, size,

spatial continuity, intensity, type (crown re, surface re, or ground re),

and severity in a particular area or ecosystem.” U.S. Forest Serv., 

  , http://www.fs.fed.us/database/feis/glossary.

html (last visited Feb. 28, 2016).

Copyright © 2016 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.