Forest Service Sued Over Loss of Life, Property From NM Calf Canyon/Hermits Peak Wildfire

Silver City Hotshots Conduct Firing Operations
Silver City Hotshots Conduct Firing Operations along Hwy 518 west of Holman during night shift for May 9th, 2022. (Inciweb Photo)

Colleen Heild – Albuquerque Journal, N.M.

Oct. 23—In the summer of 2022, Jimmy and Linda Cummings traveled to one of their favorite places on earth, in the forest of northern New Mexico.

Linda’s mother, Betty Greenhaw, 84, went along for the annual summer trip to the cabin that had been in the family for 60 years, near Tecolote Creek, west of Las Vegas, New Mexico.

The family called it “Granny’s log cabin.”

The three West Texas residents were inside the cabin on July 21 when monsoon rains hit the burn scar from the massive Calf Canyon/Hermits Peak wildfire, creating a flash flood that swept them to their deaths, authorities said.

Greenhaw’s body and that of her daughter Linda, 62, were found on the banks of the creek. Jimmy’s body was discovered several days later. He was 62. Police found a capsized vehicle in the creek with no one inside, according to the San Miguel County Sheriff’s Office. The cabin was leveled.

The wildfire, New Mexico’s largest in history, destroyed more than 314,000 acres and 900 structures, but there were no deaths reported while the fire raged. The U.S. Forest Service took responsibility for starting the blaze, which began as a prescribed burn but spread out of control in high winds in April 2022 and took more than two months to contain.

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Congress set aside nearly $4 billion to compensate victims. And last week, FEMA announced its claims office has paid more than $101 million so far for claimant losses.

But what kind of losses are eligible for compensation is now at issue in two federal lawsuits filed this month in U.S. District Court in Albuquerque, including one filed by the relatives of the victims who died in the flash flood.

That wrongful death lawsuit filed Oct. 11 alleges the U.S. Forest Service not only was negligent in the management of the prescribed burn, but was to blame for failing to close roads and prevent access to areas at risk for life-threatening flooding that followed.

The agency didn’t follow “mandated directives to put in place barriers or other protective systems following damage to the land” in the burn scar, the lawsuit contends.

The Forest Service also allegedly failed to provide adequate warnings to the Cummings couple and Greenhaw about the dangers caused by the wildfire, and the dangers of potential flash floods in the area.

Daniel Walker, a Florida attorney representing the plaintiffs, told the Journal last week the victims wouldn’t have traveled to the cabin had they known of the dangers.

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It was their understanding, “and that of the other people in the area that it was safe to be there, even after the fire,” Walker said, adding that residents of nearby cabins made it out alive after the flooding.

“This was so tragic and what was a preventable loss,” Walker said, “due to the negligence of the Forest Service.”

Neither the Forest Service nor its parent agency, the U.S. Department of Agriculture, has formally responded to the lawsuit so far. The U.S. Department of Agriculture didn’t provide a settlement offer or denial of claims initially filed in the case earlier this year, the lawsuit states.

Meanwhile, 10 survivors of the fire sued the Federal Emergency Management Agency last week over an aspect of its final administrative rule related to compensation for fire victims.

The lawsuit filed Oct. 17 contends a portion of the rule unlawfully denies victims of the Calf Canyon/Hermits Peak Fire compensation for non-economic damages, including interference with personal comfort, annoyance, and inconvenience.

The plaintiffs include a family of four who lived on a 14-acre parcel of land ravaged by the fire. The family, some who lived in separate residences on the land, include Dorothy Jones, 98, and Tangee Jones, 77. All intended to live on the property for the rest of their lives, the lawsuit states, but the wildfire destroyed their homes “with virtually all their personal possessions inside.”

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Now the four share a small apartment while they wait to rebuild.

Other plaintiffs include Brian and Barbara Rodgers, who resided in a custom single-family home on a large 241-acre plot of forest for about 25 years. Now the couple, who are senior citizens, live in a travel-trailer while they wait to rebuild.

The lawsuit is asking a judge to invalidate the portion of the new rule that refuses to compensate noneconomic damages, arguing that it conflicts with state and federal law.

Asked about the two cases, Deborah Martinez, spokeswoman for FEMA, told the Journal in an email Friday, “We do not comment on pending or current litigation.”

The agency said in a statement last week, the most frequently compensated losses from the fire involve damaged homes and related infrastructure. The losses involve rebuilding access roads to homes, critical infrastructure like wells and septic systems, and funds to compensate for losses to outbuildings.

“The Claims Office has also distributed significant compensation for protective measures and future regrowth losses. Compensation for these losses includes purchasing flood insurance policies, removing debris/obstructions and funds for reseeding,” FEMA stated.

The third most frequently compensated group of losses are losses experienced during the evacuation period. This category includes compensation for mileage to evacuate, food expenses, hotel stays, and food losses experienced due to evacuation and/or power outages.


(c)2023 the Albuquerque Journal (Albuquerque, N.M.)

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Colleen Heild – Albuquerque Journal, N.M. Oct. 23—In the summer of 2022, Jimmy and Linda Cummings traveled to one of their favorite places on earth, in the forest of northern New Mexico. Linda’s mother, Betty Greenhaw, 84, went along for the annual summer trip to the cabin that had been in the family for 60 years, […]

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