Dec. 23—Marianna Lands survived New Mexico’s largest wildfire in the spring of 2022 after flames spared her home of more than 20 years in Cleveland, N.M., while destroying a neighbor’s.
“We thought we were safe,” she told the Journal Monday. But then came the rain and the flooding in the burn scar. It was all too much, Lands said, “It was beyond me.” In the stress of living through the nightmare, she suffered a stroke.
“It was a real shock. I’m still recovering,” Lands said. “This totally changed my life.”
Lands is among the thousands of victims who claim they were harmed by the Hermit’s Peak/Calf Canyon Fire but have been denied the ability to recover noneconomic damages for pain, suffering, and mental and emotional distress.
But in a ruling based in part on a lawsuit Lands filed, U.S. District Judge James Browning of Albuquerque has found that decision by the Federal Emergency Management Agency was “arbitrary and capricious” and unlawful.
That was good news for those who were harmed after the two planned controlled burns in northeastern New Mexico merged within weeks and spread out of control.
“We’re very pleased with the judge’s ruling,” said Brian Colón, former state auditor who is managing partner for New Mexico with the Singleton Schreiber law firm. “Our message to FEMA is they’ve waited long enough to make these victims whole and now they have an obligation and a duty to redouble their focus to evaluate these claims and get these people paid.”
The wildfire scorched more than 340,000 acres in Mora, San Miguel and Taos counties beginning in April 2022, destroying more than 900 structures and forcing the evacuation of more than 15,000 households. Also evacuated were the state’s psychiatric hospital, the United World College and New Mexico Highlands University. After containing the Hermit’s Peak/Calf Canyon Fire four months later in August 2022, the U.S. Forest Service accepted responsibility for causing the fires.
Congress a month later established a dedicated relief fund to compensate victims for injuries resulting from the fire and to provide for the “expeditious consideration and settlement of claims for those injuries.” And FEMA enacted regulations in August 2023 for processing and payment of claims, which limited recovery to uncompensated damages for loss of property, business loss, and financial loss, but excluded non-economic damages such as “pain and suffering.”
Noneconomic damages can also cover nuisance, trespass and personal injury, such as damages for emotional distress, discomfort, annoyance and inconvenience, which are set out in New Mexico state law.
Browning concluded that the Hermit’s Peak Act passed by Congress waived FEMA’s sovereign immunity for noneconomic claims because such losses are covered by state law.
“We were consistent in our position that under New Mexico law, noneconomic damages were available to these victims of the federal government’s negligence,” Colón said Monday. “And the federal government, consistently over the course of last year, told us that they liked their chances (of winning), that we were wrong and they refused to pay those damages.”
Representatives for FEMA didn’t return Journal requests for comment for this story. FEMA has until Feb. 18 to appeal.
In court filings, the agency argued that the law would only allow payments for more tangible losses, such as loss of a business or medical expenses.
“FEMA recognizes that making people whole for the full scope of loss after a devastating fire may not be possible,” the agency stated back in 2022.
New Mexico attorney Antonia Roybal-Mack said she represents more than 1,000 Hermit’s Peak/Calf Canyon claimants.
“This is really going to help those who were the most affected,” she said. “The people with the most complex losses … are also the people who have the largest emotional losses.”
Some of those are long-time residents whose homes burned down and weren’t insured, she said. Some were emergency medical services workers in Mora County, who had to stay in the fire zone because their jobs required they do so.
“They had no water, no showers, no electricity, no place to sleep, they had to survive in these really deplorable conditions,” Roybal-Mack said.
Attorney Mark Dow told the Journal that most residents living in Mora County and San Miguel County were forced to flee their homes during the wildfire, “so it’s a substantial verdict for them. It’s a very personal verdict for them in many ways, not withstanding the money. Most of the people in northern New Mexico felt slighted by the U.S. Forest Service and were understandably, very, very upset that their government, the U.S. Forest Service, was so careless in protecting their homes.
“And so noneconomic damages, is really a type of pain and suffering, for the many clients who had their homes for generations, and to have your home burned down and having to flee and start all over again, is something that’s hard to explain to somebody until you’ve had your home burned down and been really displaced.”
Lands said she had to move to live near her daughter because she needs help because of difficulty walking and talking since her stroke. She said the stroke happened when her property flooded.
According to a press release from FEMA on Monday, the deadline to start a claim has been extended until March 14 for those impacted by the Hermit’s Peak/Calf Canyon Fire and “subsequent cascading events.” The extension was included as part of a bipartisan spending bill that will provide an additional $1.5 billion to the Hermit’s Peak/Calf Canyon Fire Assistance Act.
Congressional leaders included a filing deadline when they established the $3.95 billion compensation fund. The recent congressional action adds $1.5 billion to the fund, and allows affected people to apply for no-cost five-year flood insurance through the National Flood Insurance Program until March 14.
The Claims Office has paid close to $1.7 billion in compensation to claimants and continues to be committed to assisting all who are eligible, FEMA said.
If FEMA appeals Browning’s ruling, Roybal-Mack said that could drag out the compensation process “for years.”
“I know it was intended to be an easy process. That’s what Congress intended,” she said. “But that is not what the end result has been.”