Lawyers at the Federal Emergency Management Agency have not yet decided whether they’ll appeal a judge’s December ruling that orders them to compensate victims of the Hermits Peak-Calf Canyon Fire for emotional harm.
Just before Christmas last year, Federal Judge James O. Browning issued a 99-page ruling that determined FEMA had wrongly refused to pay victims of the state’s biggest-ever wildfire for “noneconomic damages,” which are payments aimed at compensating victims for the emotional toll the fire and ensuing floods caused.
Congress in late 2022 enacted the Hermits Peak-Calf Canyon Fire Assistance Act, which tasks FEMA with “fully compensating” victims of a wildfire that the United States Forest Service accidentally ignited in spring 2022 in two botched prescribed burns. Congress has given FEMA nearly $5.5 billion for victims, minus about $380 million in expected administrative costs.
Browning’s ruling came more than a year after wildfire victims sued FEMA for refusing to pay for “noneconomic damages” and nine months after the New Mexico Attorney General’s Office issued a formal opinion saying the payments were allowable under New Mexico state law, which was one element of the lawsuit.
Whether thousands of fire victims will receive noneconomic damages anytime soon is an open question nearly eight months since Browning’s ruling and more than three years since the wildfire.
The lack of clarity has left people like Marianna Lands in limbo, according to her lawyers. Lands’ farm in Mora burned and later flooded. The stress of the disaster caused Lands, who is in her late 70s, to have a stroke, according to her lawyer, Ty Tosdal, “and she has never fully recovered.”
In a letter to Source, Lands writes that in the time since she “was stroked [had a stroke] during the great fire in Northern New Mexico,” she’s had to leave her farm and move to “highly priced Hawaii” with her daughter. She was forced to move there after suffering several falls at her temporary place in Taos, falls that made it clear she couldn’t live alone, she wrote.
Marianna Lands’ letter to Source New Mexico “It is almost two and a half years since I was stroked (had a stroke) during the great fire in Northern New Mexico (Hermits Peak Fire). The first year I had to leave our farm and move to Taos, New Mexico to receive medical attention. I lived alone, with good care from friends. After several falls I realized I couldn’t live alone and had to move to Hawaii to live with my daughter, Ania Roske, who worked extra hard to make ends meet in highly priced Hawaii. Besides the warm weather, I don’t experience the paradise that Maui is called. I don’t leave my room much, don’t go to the beach, the waterfalls or to the top of mountain. I am glad to be out of the snow of Northern New Mexico.
In Hawaii I have been diagnosed as disabled… I use a cane to walk and pay close attention not to fall. My speech is better than before, but I can only talk so long before I can’t remember words. My teeth were pulled out after the stroke as they were seriously affected. The dentures I received no longer fit correctly, so it is necessary that I eat soup and very soft food.
I am spending what money I have left on medical care. Besides the house cleaning, the cooking and food shopping, I’ve just hired someone to handle the stack of papers from my desk, which I don’t have the where with all to handle. Social Security, taxes, insurance, banking is too much for my mind and words to respond to.”
While she’s glad to be out of the snow, “I don’t experience the paradise that Maui is called. I don’t leave my room much, don’t go to the beach, the waterfalls or to the top of [a] mountain,” she wrote, saying her health and money issues get in the way.
Lands has yet to receive any compensation from FEMA after the wildfire, according to her lawyer. That’s despite being the lead plaintiff in one of two lawsuits regarding “noneconomic” damages and despite filing her claim for all sorts of damages more than a year ago.
“Ms. Lands has endured many hardships as a result of the fire and flooding, and they are ongoing,” Tosdal said. “She is not a wealthy person, and she is no longer able to live on her family farm and provide for herself.”
After Browning’s ruling, FEMA and the United States Attorney’s Office issued a “motion to correct” it, arguing the judge made significant errors in his legal analysis that concluded FEMA had erroneously excluded the payments.
The lengthy “motion to correct” is not the same as an appeal, but plaintiffs’ lawyers have told Source they saw it as a precursor. FEMA’s January motion prompted a flurry of filings between plaintiffs and the government.
About a month ago, according to Tom Tosdal, Ty’s father and another lawyer suing FEMA, Browning told the parties that he would be issuing a ruling on FEMA’s motion to correct “imminently” but that he was largely unmoved in his original conclusion that FEMA needs to pay “noneconomic damages.”
Once Browning issues his ruling, FEMA and federal prosecutors can then move to file an appeal in the Tenth Circuit Court of Appeals in Denver, Tom Tosdal said. That could delay “noneconomic” compensation for fire victims for two years, he said.
A spokesperson for FEMA’s Hermits Peak-Calf Canyon Claims Office sent an emailed statement to Source New Mexico on Friday morning that the office is “awaiting the release of the Court’s written decision.” In the meantime, it is continuing to compensate claimants for losses it has deemed compensable, including for lost property, reforestation and business losses, among other losses.
“Claimants do not need to take any new action on their claims regarding non-economic damages with the navigators at the Claims Office,” according to the statement. “After the Agency receives the Court’s Opinion, FEMA will determine next steps and provide further information upon final resolution of the matter.”
According to the office’s latest update on July 15, it has so far paid out $2.73 billion in nearly 20,000 claims. The amount it could be required to pay in “noneconomic” damages is hard to quantify, plaintiffs’ lawyers have said, but it could be about $545 million, or roughly 10% of the amount Congress awarded.
“The FEMA Claims Office remains committed to compensating New Mexicans who were impacted by the Hermit’s Peak-Calf Canyon fire and subsequent cascading events in a fair manner to the maximum extent permissible by law,” according to the statement.
The United States Attorney’s Office argues the case in court, with help from FEMA’s lawyers. A spokesperson for the office did not answer Source’s questions about whether it intends to appeal.
The fire victims’ lawyers have said the damages are a necessary piece of the full compensation Congress promised to victims. The payments could serve as lifelines to people who had little to their names before the fire but still saw their lives upended in the blaze, lawyers have said.
Even though FEMA has not changed its policy to award noneconomic damages, a handful of clients have gotten them by taking their claims directly to Judge Browning. In early May, Browning spent a week and a half listening to about a dozen claimants stories about their experience of the fire and awarded them between $9,000 and $330,000, payments that included “noneconomic damages,” according to their lawyer, Brian Colón.
Tosdal told Source New Mexico on Thursday that he is considering doing the same for Lands, but he does not see individual cases going before Browning as a sustainable solution. It also means only fire victims who hired lawyers would get the compensation they’re owed, he said.
“That’s not what Congress intended,” he said.
