Law Office Management
Feb. 2, 2009
Wildfire Practice Area Heats Up
The small group of attorneys who litigate over California wildfire is set to expand.
When wildfires kill people, destroy homes, and ruin land holdings, the same lawyers frequently litigate case after case. They gumshoe behind fire investigators and represent victims, insurers, utilities, or the public. And, lately, there are signs that their niche practice is poised to expand. "Mostly, it's been a small fraternity, but as the stakes go up, more and more hats get tossed into the ring," says Kenneth Roye, a Chico-based sole practitioner and wildland fire litigator who predicts that monetary settlements in the San Diegoarea fires of October 2007 will smash all records. By some estimates, San Diego Gas and Electric Co. and Cox Communications may face up to $1.5 billion in damages for their alleged role in starting the Witch Creek, Guejito, and Rice Canyon fires that destroyed more than 1,300 homes and killed two people. "There are more than 2,000 individual claims, and every hearing I've attended so far has had between 50 and 75 lawyers in attendance," Roye says. Being one of those lawyers often involves hiring expert witnesses in the causes and origins of fires, as well as experts in electrical engineering, surveying, metallurgy, tree pathology, and other areas. Typically, wildfire lawyers sue utilities such as power companies, cable providers, and railroads, contending that poor maintenance of power lines or sloppy tree clearance along utilities' rights-of-way lead to catastrophic fires, especially in times of high winds. Indeed, utilities' allocation of funds toward maintenance and vegetation management has become what attorney Garry Hubert calls "the most crucial issue in wildland fire litigation today." Hubert, a founding partner of Hubert & Yasutake in Concord, is quick to acknowledge that utilities must balance risks in allocating expenses. "But trees grow, Santa Ana winds blow, and electrical lines are going to come into contact with tree limbs that are not properly trimmed," he notes. Alan Jang of Berkeley, who specializes in inverse-condemnation actions, says, "Power companies have to maintain the forest around their lines in a safe manner, but in some cases the companies are either not diverting funds to that, or they are allocating less." A February 2008 order by the U.S. District Court of the Eastern District of California provides a glimpse at the practice area's future prospects. Following the Storrie Fire in the Plumas and Lassen national forests, the court cleared the way for agencies to recover losses beyond the usual fire-suppression costs, adding loss of timber, environmental damage, and land damage to the list of options (United States v. Union Pacific R.R. Co., 565 F. Supp. 2d 1136 (E.D. Cal.)). Randy Gimple, a founding partner at San Francisco-based Carlson, Calladine & Peterson, says Union Pacific opened the door for a new kind of suit from state agencies, private homeowners, and others. The Sierra Pacific Industries lumber company, for example, is seeking damages for the loss of both a spotted-owl habitat and trees burned in a wildland fire, among other things, he says. "In the light of the Storrie Fire decision, plaintiffs now sue for the full complement of all possible recoverable damages," says Gimple, who is currently defending a company against a Sierra Pacific lawsuit. "We expect these cases to bring even more visibility, more money, and more plaintiffs lawyers trying them."
Usman Baporia
For reprint rights or to order a copy of your photo:
Email
Jeremy_Ellis@dailyjournal.com
for prices.
Direct dial: 213-229-5424
Send a letter to the editor:
Email: letters@dailyjournal.com