CA Denied on Fire Claim Against Logging Business

     QUINCY, Calif. (CN) – California cannot recoup millions from a logging company for a 2007 wildfire that charred over 100 square miles of forest, a Plumas County judge ruled.
     State and federal officials blamed Sierra Pacific Industries for starting the Moonlight Fire in Plumas and Lassen National Forests, claiming two unsupervised employees were using bulldozers on a red flag warning day – when fire danger is at its most extreme.
     The California Department of Forestry and Fire Protection, more commonly known as Cal Fire, sought to recover more than $8.1 million for fire suppression and investigative costs in an August 2009 complaint. Officials claimed private landowners contracted with Sierra Pacific to clear timber from their land, and that the company allowed its own subcontracted employees to do so despite extreme conditions and in violation of its own fire-prevention policies.
     Cal Fire claimed that Sierra Pacific’s subcontractor, Howell’s Forest Harvesting, started three other wildfires in the area during the 2007 fire season. In the case of the Moonlight Fire, investigators believed that bulldozers struck rocks that kicked up sparks and ignited dry vegetation.
     Sierra Pacific settled claims from the U.S. government related to the Plumas fire last year, paying $55 million and donating 22,500 acres of land to the U.S. government.
     In a statement at the time, Sierra Pacific had said it settled for a fraction of the $791 million sought because the court hearing the federal case found “that the defendants might be liable for a fire they did not cause.”
     Sierra Pacific’s director of corporate affairs, Mark Pawlicki, called it “baseless and unprecedented” for the court to hold that the company “could be liable for someone else’s fire.”
     Things went differently for California’s case against Sierra Nevada over the fire in Plumas County Superior Court. A week before the parties were mean to go to trial, Judge Leslie Nichols found that Cal Fire failed to make a basic showing of its case.
     In a separate decision, Nichols dismissed the entire action against Sierra Pacific and Howell’s.
     “Cal Fire must allege – and ultimately prove – that each of the defendants unlawfully or negligently engaged in one of the following acts delineated by the statutes: set a fire, allowed a fire to be set, or allowed a fire kindled or attended by him/her/it to escape onto public or private property,” Nichols wrote. “Cal Fire does not allege that Sierra Pacific or the landowner defendants set the Moonlight Fire. Nor does Cal Fire contend that these defendants kindled or attended the Moonlight Fire and subsequently allowed its escape.”
     Sierra Pacific’s lead trial attorney, Bill Warne with Downey Brand, called the dismissal “vindication” after the company had to settle the federal case.
     “In stark contrast [to what the federal court found], the state court ruled that the logging regulations did not impose any duty on the named defendants to search for third-party fires, and that Cal Fire could not prevail unless it could demonstrate that the named defendants unlawfully or negligently started or allowed the fire to spread,” Warne said in an email. “The state court also ruled that, based on the applicable law, Cal Fire could not establish that the mere act of driving a bulldozer over a rock could possibly, in and of itself, prove the negligent ignition of a fire. On this point, the federal judge had reached a different legal conclusion.”
     Warne also noted that the federal court planned to treat the Moonlight Fire as “an ordinary negligence case, which required no expert opinion on the standard of care.”
     In Plumas, however, Judge Nichols ruled that it was a professional negligence case, and Cal Fire’s lawyers failed to present the required expert opinion testimony, Warne said.
     As to Howell’s alleged involvement in three 2007 fires, lawyer pointed out that “the origin and cause reports blaming Howell’s for those fires were only executed after the investigators named Sierra Pacific as the ‘defendant’ on the Moonlight Fire, even though one of those fires was investigated months before and another weeks before the Moonlight fire even began.” (Emphasis in email.)
     Though Cal Fire urged the Plumas court to hold Sierra Pacific liable for allowing the fire to be set, Nichols said that the supporting cases it cited indicate only Howell’s liability if negligent equipment maintenance caused the fire. The cases say nothing about holding the other defendants liable.
     “Cal Fire contends that independent tort causes of action, such as negligent supervision and retention, as well as common law negligence doctrines such as retained control and peculiar risk, can be grafted into its statutory cause of action under the Health and Safety Code,” Nichols wrote. “Such an approach, however, would circumvent the rule that Cal Fire cannot recover fire suppression costs through common law tort causes of action. Had the Legislature intended to allow Cal Fire to recoup fire suppression costs to the extent allowed by the common law, the Legislature could have easily done so. Instead, the Legislature delineated specific classes of persons who could be held liable for these taxpayer-supported costs, none of which encompasses Sierra Pacific or the landowner defendants.”
     Cal Fire officials indicated that the agency is considering an appeal, while Sierra Pacific said justice has been served.
     “We knew all along that the evidence did not support the state’s claim that our contractor started the fire,” Sierra Pacific spokesman Mark Pawlicki said in a statement.
     In 2011, a federal judge gave Sierra Pacific permission to sue Howell’s insurer, American Insurance Co., for failing to defend and indemnify it in seven separate Moonlight Fire lawsuits. The company faced a combined $1 billion in federal, state and private claims.
     William Warne, Michael Thomas and Annie Amaral of the Sacramento firm Downey Brand represented Sierra Pacific in the action.

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