Metropolitan News-Enterprise


Monday, July 2, 2012


Page 1


Ninth Circuit Upholds Award to U.S. Resulting From Forest Fire




The Ninth U.S. Circuit Court of Appeals Friday upheld a judgment awarding  the federal government more than $26 million in damages resulting from a 2002 wildfire that burned 18,000 acres of the Angeles National Forest.

CB & I Constructors, Inc., a subcontractor on a water tower project in Santa Clarita, did not challenge the award of $7.6 million that the federal government spent for fire suppression and restoration work. But it contended there was insufficient evidence to support the award of another $28.8 million for intangible damage to the forest.

The fire, which took place on a June day that the temperature at the work site exceeded 100 degrees, was caused by sparks from an electric grinder operated by a member of a CB & I welding crew. The employee saw the sparks, but said the fire was out of control by the time the crew descended from the roof  on where it was working.

The Copper Fire, as it became known, took nearly a weeklong effort by federal, state, and county firefighters to control.

Known Fire Hazards

In suing CB & I, the government suggested the workers performed tasks that posed known fire hazards, despite the extreme heat, in an effort to earn bonuses that the company paid for finishing work ahead of schedule.

It also said that CB & I and general contractor Merco Construction Engineers, Inc. failed to take recommended precautions, such as clearing brush within 100 feet of the tanks, regularly watering dry vegetation, and keeping a fire watch on the ground while the crew worked on the roof.

The result was not only millions of dollars in costs to the taxpayers, the government said, but environmental devastation, including many months in which cyclists, horseback riders, off-road vehicle enthusiasts, and others could were barred from the area; loss of habitat for the California red-legged frog, an endangered species; and extreme damage to the historic Hazel Dell mining camp

SJoint and Several Liability

The jury concluded that CB & I was 65 percent responsible, and Merco 35 percent at fault, just after Merco settled with the government for $2.1 million. Applying California law on joint and several liability, U.S. District Judge Percy Anderson ruled CB & I jointly liable for the economic damages, and severally liable for 65 percent of the noneconomic damages, or $18.72 million.

In denying CB & I’s motions for judgment as a matter of law and for new trial and remittitur, Anderson wrote:

“In burning 18,000 acres of the Angeles National Forest, the Copper Fire harmed lands held in trust for this and future generations. The Government should be able to recover damages for all of the damages caused by the fire, including the intangible environmental damages, and the trial provided sufficient evidence for the jurors to quantify that harm.”

Judge William A. Fletcher, author of the Ninth Circuit opinion, agreed.

Under California law, the jurist explained, the party responsible for negligence resulting in property damage is broadly liable for all damages caused thereby, including environmental damage. He noted that this district’s Court of Appeal upheld a negligence award of more than $3 million, including environmental damages, levied against CB & I for damage to a nearby ranch as a result of the Copper Fire.

Specific Evidence

The evidence, Fletcher went on to say, was sufficiently specific to enable the jury to assign a rational value to the intangible loss. Jurors, he noted, heard five days of testimony by expert and percipient witnesses about the environmental impact of the fire, including the interference with recreation, the historic value of the mining camp, and the significance of the loss of habitat for an endangered species.

Nor was the amount of the award grossly excessive as a matter of law, Fletcher said, given that it amounted to less than four times the economic losses and to a reasonable $1,600 per acre burned.

Fletcher was joined by Senior Judge Alfred T. Goodwin and Judge Johnnie B. Rawlinson.

Attorneys on appeal were Peder Kristian Batalden, Lisa J. Perrochet, and Robert H. Wright of Horvitz & Levy, LLP, along with Northern California lawyer Jeffrey D.

Lyddan for CB & I, and Assistant U.S. Attorneys Abraham Meltzer and Leon W. Weidman for the government.

The case is United States v. CB & I Constructors, Inc., 10-55371.


Copyright 2012, Metropolitan News Company