The Klickitat Public Utility District is disputing a $65.5 million claim by the Yakama Nation for damages to tribal timber by a wildfire that investigators say was caused by the utility’s failure to remove trees close to power lines.
The Yakama Nation is seeking $65.5 million in damages from the Klickitat Public Utility District for a 2013 wildfire that burned almost 20,000 acres of tribal timberland near Satus Pass.
The tribe say a district power line ignited a tree. But the PUD disputes that conclusion and is asking a federal court to dismiss the claim, which was filed on behalf of the tribe by the Bureau of Indian Affairs.
The case represents one of the largest damage claims ever sought by a tribe over a fire on Indian forest land. Litigation over damages caused by wildfires is fairly routine, but the amounts being sought are growing as wildfire costs rise across the West.
“This fire caused significant economic loss to the tribe, job loss, and cultural losses to the land and hurts the long-term management of our forests,” said Phil Rigdon, natural-resources director for the Yakama Nation. “The Bureau of Indian Affairs has a trust responsibility to recover the damages.”
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That responsibility is laid out in the National Indian Forest Resource Management Act, which requires the agency to seek damages from anyone who trespasses on tribal forest land and damages the resource.
But in court filings, the PUD argues that the Bureau of Indian Affairs’s claim is invalid because there’s no proof it “trespassed” on tribal land.
The utility’s general manager, Jim Smith, did not return multiple requests for comment.
While the law is designed to protect tribal timber from theft, the definition of trespass “can include any damage to forest resources on Indian forest land resulting from activities under contracts or permits or from fire.”
Moreover, the act sets the civil penalty for trespass at three times the value of the lost timber.
That’s what pushes the estimated $18 million in losses to a claim for $54 million. Rigdon said an outside contractor was hired to assess the damages.
On top of that, there’s $10 million in interest, the value of lost fish and wildlife habitat, and the cost of the investigation, bringing the total sought to $65.5 million.
That claim is among the largest sums sought for wildfire damages in Washington.
A $59.75 million settlement was just reached for dozens of landowners who lost homes and other property in the 2012 Taylor Bridge Fire in Kittitas County, which burned 23,000 acres after it was sparked by construction contractors working for the state Department of Transportation.
The state Department of Natural Resources estimates that about 85 percent of the state’s wildfires are human-caused. Of those, about half are determined to be negligent or intentional, meaning someone is responsible for the costs.
Fighting wildfires in Washington this year cost about $320 million. That doesn’t include damage to more than 1 million acres that were burned. But the largest and most destructive fires are often sparked by lightning, not people.
In 2014, for example, people and lightning sparked similar numbers of fires in the Pacific Northwest, but the lightning fires burned 10 times more acreage, according to the National Interagency Coordination Center.
That’s because people generally tend to start fires closer to firefighting resources, where they can be put out faster than a lightning-strike fire burning in a remote forest.
In Eastern Washington, the Department of Natural Resources has sought to recover costs ranging from $900 to $50,000 for more than 400 smaller fires over the past 10 years, spokeswoman Janet Pearce said.
Larger cases are handled by the state Attorney General’s Office.
Pearce said the agency has a 75 percent success rate on recovering costs for the smaller fires.
“If they don’t pay up, we can go to small-claims court, but then we have to decide if it’s worth it to go after that cost for the state of Washington,” she said. “Sometimes, we just suffer the loss because it’s like squeezing blood out of a turnip.”
In the past few years, the state has sought to recover millions from the parties it found responsible for several major fires. That includes the Taylor Bridge Fire and the 2013 Colockum Tarps fire, which was sparked by faulty wiring in an irrigation system and burned 80,000 acres Chelan County.
The Klickitat utility is also contesting the $2 million bill for firefighting costs from the state Department of Natural Resources, which concluded last summer it was responsible for the 26,000-acre fire.
Investigators said the utility should have known that large trees growing close to its lines posed a hazard.
The utility responded, saying it “does not believe it was in any way negligent and that the fire resulted from acts and omissions of an uninsured company conducting logging operations in proximity to KPUD lines, without appropriate notification to KPUD.”
According to the state’s investigation report, a logging crew was working in the area where the fire started just south of U.S. Highway 97 on July 24, 2013, but they were not found to be at fault. Instead, investigators said two trees apparently caught fire from contact with the power lines, about an hour apart, and the logging crew was able to put out the first fire but not the second.
The second tree, which was located in a no-cut zone where loggers were not working, quickly spread fire to the ground, investigators said. The burn pattern on that tree, which was still standing after the fire, and in the surrounding area convinced investigators it was, indeed, the starting point.
In its letter of appeal, the utility said the investigators did not establish how the tree came into contact with the power lines and suggests that the contact was caused by the loggers.
The utility’s general manager, Smith, previously told the Goldendale Sentinel that “this is for a fire we believe was caused by a Yakama Tribe logging contractor” and that it could have been extinguished early by Klickitat County firefighters if they hadn’t been stalled by jurisdiction issues.
The utility has asked the Department of Natural Resources to revise its investigation report, Smith told the Sentinel.
Meanwhile, the utility’s case seeking relief from $65 million assessment has been assigned to Chief Judge Rosanna Malouf Peterson in the U.S. District Court of Eastern Washington, in Yakima. No trial dates have been set.