Wildfire lawyers visit Taos County
Recouping indirect fire costs has proven lucrative for attorneys and local governments
Dangling the prospect that the county could recover damages indirectly caused by the historic, 341,735-acre Calf Canyon–Hermits Peak wildfire, a huddle of lawyers pitched their services to the Taos County Commission during its regular meeting last Tuesday (Feb. 21).
Only a relatively small portion of southeast Taos County lands burned last year in the state’s largest-ever wildfire. But a monthslong fire suppression operation and subsequent suppression-repair activity took a toll on county roads, according to Deputy County Manager Jason Silva.
Taos, which operated an evacuation center at times, was also designated to host an incident command center for much of the fire. The town and county saw a massive influx of heavy equipment, firetrucks, aircraft and personnel — who built hundreds of miles of fire breaks to prevent the fire from spreading further north in Taos and Colfax counties.
Silva told the Taos News that one county-maintained road in Santa Barbara took a real beating. “That road wasn’t constructed to handle logging trucks,” he said, adding that it will take “a good chunk of change” to repair it after fire suppression activities seriously degraded it.
“We were told we couldn’t be reimbursed for the road,” he added.
Enter the wildfire lawyers, most of whom work for out-of-state law firms, but collaborate with New Mexico attorneys, like Darren Cordova and Antonia Roybal-Mack.
“But for this fire, what would have been different in our county?” John Fiske, an attorney with California’s Baron and Budd legal firm, told officials to ask themselves.
“If a building burns down — a library, for example — that’s a relatively simple analysis,” Fiske said, asking commissioners to instead consider more abstract categories of damage.
“What we’ve specialized in, over the last six years, is helping public entities understand how taxpayer and public resources have been lost or expended or spent,” including future losses related to
disasters, Fiske said. “We are the experts in this area. We have been selected 91 times by public entities to represent them in wildfire damages recovery in the aftermath of a wildfire. Sixty-nine of those were resolved and we have recovered close to $1.5 billion; the other 20-some public entities are in active litigation.”
Baron and Budd has done most of its litigating in California and Oregon. Fiske ticked off the names of several catastrophic wildfires, including the 2021 Dixie Fire and the 2018 Camp Fire, the latter of which largely destroyed the town of Paradise and several surrounding communities; 85 people lost their lives in the wildfire, which was sparked by a downed Pacific Gas and Electric Company transmission line. It was the costliest disaster worldwide that year, clocking in at over $16 billion.
“We’ve been very busy where wildfires are started by human activity and human negligence,” Fiske said.
Christine Lee, principle with Industrial Economics, Inc., a public resources and economics consulting
firm, delivered a presentation that described four basic categories of damages that a municipality or county might experience as a result of a wildfire — even when no structures burned, as was the case in Taos County.
Wildfire-related “increases in expenditures” could include heightened payroll expenses, or the expense of operating an evacuation center, as well as debris and tree removal, Lee said.
“Anything that’s a direct expenditure of expenses that you wouldn’t have had to do but for the fire” could be subject to claims, Lee said.
Secondly, “There’s a lot of infrastructure that a county operates that could be adversely affected” for years to come, Lee said, moving on to potentially recoverable “losses of productive assets.”
Lee said loss claims could include “direct infrastructure damage” or “the cost to repair or restore assets to pre-fire conditions,” such as offsetting lost capacity at landfills due to wildfire debris being dumped, wear and tear on roads subject to unusually-heavy vehicle
traffic, erosion from flooding, or damage to culverts and drainage systems.
Silva was unable to confirm whether the Taos Regional Landfill had accepted an unusual amount of debris stemming from the wildfire.
Declines in revenue during the wildfire — due to late property tax payments or sudden property devaluations, for example, decreases in lodger’s tax revenue due to declines in tourism, or dips in gross receipts tax collections due to evacuations — could also be recovered by counties, according to Lee.
“The last category is environmental and cultural assets,” Lee said. “We have a lot of experience with economic techniques that allow you to monetize or put a dollar amount on the loss of public resources, natural resources.”
Mora County was subject to nearly every indirect cost described by Fiske and Lee, however Mora County Manager Eugene Martinez did not return a message asking if the county is seeking to recoup such damages.
District 3 Commissioner Darlene Vigil asked if the largely indirect wildfire impacts on Taos County were sufficient to warrant exploration of such damage recovery.
“Is this something we should be looking at?” she asked. “We did in fact assist the county next door that was hit really hard.”
Cordova said Taos County and other counties should be looking at every legal alternative, and emphasized that damage calculations provided by Industrial Economics, Inc. have been accepted by the Federal Emergency Management Agency in the past.
“This analysis model can be used in either direction,” Cordova said. “If you want to go to court and sue the federal government for what happened; or if they want to go through the claims process with FEMA: Our unique position is that this exact damages model has been used for the benefit of FEMA numerous times, so that’s why I think we’re uniquely positioned to help the county with the claims.”
Fiske was confident that Taos County could recoup damages.
“In every wildfire, there are counties and cities that are affected more than others,” he said. “Taos County did have a wildfire footprint. That said, our review and analysis is really about all the ways the county has been affected. Either by direct flame burn, or direct smoke soot and ash coverage, in addition to all of the ways a public entity responds to a fire, or the ways the fire will affect the county in the future. For example, if there’s emergency operations, or if there’s a loss of tax revenue in the future, or one of the large categories we do is about future hazard mitigation.”
District 4 Taos County Commissioner and Chair AnJanette Brush acknowledged that “We certainly spent many staff hours in the response; and I would be curious how our roads fared as well.”
“We have actually recovered, in litigation, for counties that have zero fire footprint,” Fiske said. “Yuba County, in the Camp Fire? No footprint at all; all within Butte County. We recovered about $12 million for them based on damages they suffered. It’s an analysis we would engage with you on.”
Taos County Manager Brent Jaramillo told the Taos News this week that his office hadn’t yet determined if the county would seek legal representation for indirect wildfire damage claims, which would require that a request for proposals be issued under state procurement law.