Pueblos sue for fire damage

Jun 16 - Albuquerque Journal (NM)

Two northern New Mexico pueblos are suing Jemez Mountains Electric Cooperative and the U.S. Forest Service for negligence, holding them responsible for the 2011 Las Conchas Fire, which burned more than 150,000 acres.

In separate lawsuits filed this week in district court in Sandoval County, Cochiti and Jemez pueblos allege that Jemez Mountains Electric Coop failed "to take reasonable precautions to prevent and suppress forest fires."

Tri-State Generation and Transmission, which provides power to most of New Mexico's electric cooperatives, is also named as a defendant, along with up to 50 unnamed employees of Jemez Mountains Electric or Tri-State.

In addition, the pueblos, along with four individuals and a realty company that jointly own a ranch near where the fire started, filed federal tort claims against the Forest Service seeking $85 million in damages.

The Las Conchas Fire, at the time the largest fire in the state's history, was sparked after a wind gust caused an aspen to fall across power lines near the Las Conchas Trailhead off NM 4 between Los Alamos and Jemez Springs in June 2011. The blaze burned more than 156,000 acres and destroyed 63 homes.

According to the suits against the co-op, "the ignition of a wildfire by Defendants' electric lines was reasonably foreseeable and was either known or should have been known by Defendants given the circumstances of the narrow width of the right of way and the height and condition of the surrounding trees."

According to the New Mexico State Forestry Division's report on the fire, the co-op was required to clear and maintain trees within a 20-foot easement running along the length of its power lines. The 60-foot tall tree was located on private land at least 50 feet from the cables.

San Diego-based attorney Manuel Corrales, who filed the claims against the co-op, did not return phone messages from the Journal on Thursday and Friday. Efforts to reach the attorney representing the co-op were unsuccessful.

Negligence claims

However, Kathleen O'Dea, the co-op's attorney, released a statement after the Forestry Division's report was released denying that Jemez Mountains Electric was responsible for the fire.

"(I)t is clear that the Cooperative had no responsibility for this unfortunateincident, nor has the cooperative been cited," it read. "The Cooperative does not have any authority to enter onto private property to remove trees, nor would there have been any reason to remove that particular tree in light of the fact that the tree had a full crown of leaves and appeared healthy."

The Forestry Division's report said rotting at the tree's base caused an unstable condition and that "the south side of the tree trunk appeared to be the only living portion of the lower tree trunk."

The lawsuits against the coop state that the Jemez Mountains Electric was negligent because it failed to inspect or remove the aspen that fell on the power line, did not seek a right of way of a safe width or place the power lines underground given the narrow width of the right of way, and failed to install circuit-breaking systems to cut off the power in the event a tree or limbs contacted the power lines.

The lawsuits state that the co-op was obligated to take necessary precautions under National Electric Safety Code and National Electric Code standards, which require electric utilities to regularly trim and clear trees and vegetation from around utility lines.

The lawsuits demand a jury trial and ask for just compensation for all harm to real and personal property, compensatory damages, and all costs associated with bringing the lawsuit.

Jemez Mountains Electric is already facing several lawsuits stemming from the Las Conchas Fire, some filed by customers whose properties were damaged and others by insurance companies.

The co-op was found to be responsible for at least two previous fires. The Rio Grande Sun reported that it was billed $2.2 million for the 2008 Bear Paw Fire and $93,000 for the 2010 Red Fern Fire.

Though no lawsuits have yet been filed, a downed power line is blamed as the cause of the Thompson Ridge Fire currently burning in the Jemez Mountains. That blaze has consumed 24,000 acres.

Chain of responsibility

The federal tort claims against the Forest Service allege losses due to burned timber, erosion, flood damage, and habitat and business loss.

The tort claims were filed by the Tosdal Law Firm of Solano Beach, Calif., which lists energy law among its specialties.

Tom Tosdal said while the co-op should be held responsible for the fire, Tri-State and the Forest Service should also be held accountable.

"The focus heretofore has been on Jemez Mountains Electric. While we think they were negligent for cause, we think the responsibility goes up the chain to Tri-State and the federal government," he said.

The claims state that while the Forest Service seeded, mulched, and performed other activities to prevent erosion and flooding after other fires on national forest land, they did not do so following the Las Conchas Fire.

Cochiti Pueblo, the Cochiti Community Development Corp. and Jemez Pueblo are each seeking $15 million in damages. Gary and Valerie Swearingen, Janice Cox Anderson, Elizabeth Ora Cox and BJD of Albuquerque -- joint owners of a ranch allegedly damaged by the fire -- are each asking for $8 million in damages.

The Forest Service did not return phone messages from the Journal seeking comment.

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