MOONLIGHT FIRE UPDATE:
CAL FIRE FINED & SIERRA PACIFIC
(This is the Associated Press story. We will have an update tomorrow with comments from Sierra Pacific Industries and Cal Fire)
A Northern California judge has found the California Department of Forestry and Fire Protection guilty of ‘egregious and reprehensible’ conduct in its response to the 2007 Moonlight Fire that scorched more than 65,000 acres in Plumas and Lassen counties. The agency has to pay more than $30 million in penalties and legal fees. Retired Superior Court Judge Leslie C. Nichols said Tuesday that CalFire’s efforts to pin the blame for the fire on the company Sierra Pacific were corrupt and tainted. Nichols said CalFire withheld documents for months, destroyed evidence and engaged in a campaign of misdirection with the purpose of recovering money from Sierra Pacific. The Sacramento Bee reports that the ruling is the latest twist in a legal battle that began soon after the fire erupted on Labor Day 2007. (Copyright 2014 The Associated Press)
Here is the transcript from the Friday Forum feature originally broadcast in July 2012, which provides some background on this story.
Posted on Monday, July 30th, 2012 by kchonews | Edit
Here is the transcript for the Friday Forum from last week on the settlement concerning the Moonlight Fire. I talked to Ben Wagner, U.S. Attorney for the Eastern District, and Mark Pawlicki, Sierra Pacific Industries’ Director of Corporate Affairs. (Story by Northstate Public Radio News Director, Lorraine Dechter)
It was Labor Day in 2007 when the Moonlight Fire started… and ended up becoming the most catastrophic wildfire in U.S. history. It burned 45,000 acres of forest land on the Plumas and Lassen National Forests. And another 20,000 acres on private land. In fact, the fire started on private land. The U.S. Attorney’s office sued Sierra Pacific Industries of Anderson and their timber contractor for damages — $791 million dollars. Mark Pawlicki is the Director of Corporate Affairs for Sierra Pacific:
Pawlicki: So we were getting ready to go to trial and just a week before the trial the judge ruled that even if we didn’t cause the fire, or our contract logger or the landowner itself, even if it were someone else, we – the people who were sued in the case – could still be held liable for the fire. Well, our entire defense was that we didn’t start it. So, when the court ruled that even if we didn’t start it we could be liable for it, there wasn’t much point in going on. TRT: 0:32
Even though Sierra Pacific paid less than they could have to settle the case, $55 million dollars and 22,500 acres of land, they still have related lawsuits pending… state and civil suits from neighboring landowners. SP believes they are being sued for too much, and they blame it on state law. So they want to change it.
Pawlicki: Its not to change the liability standards, it’s only to change guidelines for how damage assessments are made. We think there should be some guidelines and some side boards… not a strictly limit. Take into consideration the value of the timber that’s lost, the wildlife habitat, the archeological values – all of that we think should be taken into account, but not taken to an extreme level. That’s what’s allowed today under current law. TRT: 0:29
Some of the changes in state law are already in the works, hidden in the Governor’s May Budget Revision. The U. S. Attorneys office, who led the case against Sierra Pacific and its contractors, is deeply concerned about the proposed changes. I spoke with Benjamin Wagner, the U.S. Attorney for the Eastern District of California.
Wagner: One of the things about the California legislation is that Sierra Pacific and some others in the timber industry are trying to get through legislation which would discriminate against the federal government and the state of California. It only would restrict public entities, that is, the United States and the state of California, when their land is burned, and Sierra Pacific would continue to be able to assert the same sorts of damages they’ve always done when land is burned that they own.
KCHO: They were talking about some state legislative reform that was tied into the governor’s May revision, which seems odd to me.
Wagner: It seems odd to me too. I’m speculating a bit here, but the timing of it was very, very curious to us. We were getting very close to our trial date, and suddenly we learned that Sierra Pacific was backing legislation on a fast-track that would have affected our recovery theories in this case. But going forward, the legislation is still out there and is likely to be voted on soon. And while this case is resolved, we still have concerns about the legislation going forward… that it essentially discriminates against the federal government and the state so that there’s weaker protection for the valuable environmental and public resource land that the public owns than there is for private landowners.
There are a number of other factors in the legislation that we’re concerned about. For example: It tries to tie recoveries to the pre-fire fair market value of the land. That may be a number that is readily ascertainable when you essentially own a tree farm or some other sort of income-producing property. But the property in the national forest system cannot be sold, by law. It belongs to the public for future generations and it has multiple purposes, not just to produce income from timber sales. It protects important watersheds, important habitat for endangered species – it has long-term environmental benefits – and it serves for public recreation. The land is not readily “valuable.” You can’t value it that easily by simply drawing a line on a map and giving it a market value. And that seems to be what Sierra Pacific is trying to do, in part, with this legislation.
KCHO: How will your office, or others that you are aware of, be working to change some of the legislative reform proposal?
Wagner: Generally, because I represent the United States in federal courts and deal with federal law, I don’t generally get involved in state legislation. I’m not trying to stick my nose into policy making by the state. That’s really between various interests in the legislature and the people here in California. But in this case I’ve been given authority from Washington to talk to the legislature about our concerns. Really, all we want to do is educate those people in the legislature who will be voting on this about what our concerns are as they affect the federal forest land. TRT 3:24
U. S. Attorney Wagner and Sierra Pacific’s Mark Pawlicki seem to be in battle still, even though their case was settled – out of court – earlier this month. Pawlicki is Sierra Pacific Industries Director of Corporate Affairs.
Pawlicki: State law is much more friendly to a federal prosecutor in California than federal law. In fact, there’s no other state that has the kind of law that we have on the books. That’s why you see such high damage claims in California but you don’t see those in other states. That’s why the U.S. attorneys in California are so aggressive at going after landowners like railroads and utilities and timber land owners, because California law basically says the value is whatever the government says it is. And then under a quirk in the law they can double it. And the federal prosecutors choose that, because it’s so favorable to them. It’s a virtual gold mine.
KCHO: Why do you say there’s a bounty-hunter mentality here?
Pawlicki: Here’s why. California law is ambiguous as far as what the damage claims can be when the federal government sues a private landowner for damages. It’s very open-ended. When it’s open-ended, the federal government can pursue as much as they want to, and name whatever price they want to name. In this case, the land in timber – if it were appraised under normal conditions of buying and selling land, which the Forest Service does regularly – that land, in timber and other resources, would have been worth about $110 million. But yet California law allows them to try to seek damages in the amount of $791 million. It’s clearly something that’s not rational. That’s why the California law needs to be changed. TRT: 1:30
Pawlicki is also concerned that companies like his will close access to the public to their lands – impacting recreational opportunities and access in Northstate forests for hiking, horseback riding, hunting and other activities – if the state law does not change course and give them some protection. As things stand, if an arsonist or re-creating citizen accidentally or intentionally starts a fire on their land that burns neighboring forest land – they’ll be liable.
But according to the U.S. Attorney, landowning companies will only be liable if they are negligent. And according to Ben Wagner, the U.S. attorney in this case, the evidence was very clear… that Sierra Pacific and the contractor were “ultimately responsible for his fire.”
Sierra Pacific disagrees… they think the investigation was biased, and that they nor their contractor were responsible. That someone else must have started the fire near the worksite where their contractor was running a bulldozer during a Red-Flag-Warning, low-humidity Labor Day in 2007.
The fire is out. The settlement has been made. But the issue is still hot – and so are the tempers at both Sierra Pacific and the U.S. Attorneys Office.
For Northstate Public Radio News, I’m Lorraine Dechter.
Filed under: News | Tagged: Benjamin Wagner, CALFIRE, Mark Pawlicki, Moonlight, Sierra Pacific, Sierra Pacific Industries, SPI | Comments Off