Isidro Archuleta sits in a donated trailer on Wednesday, Sept. 14, 2022, because his home was inaccessible amid Hermits Peak-Calf Canyon Fire flooding. The deadline is today to file an initial claim for damages from the fire, and a recent federal ruling means thousands of victims could eligible for damages related to the emotional toll the wildfire and ensuing floods caused. (Photo by Megan Gleason / Source NM)
Now that a judge has struck down a federal regulation that limited compensation only to economic losses from the Hermits Peak-Calf Canyon Fire, a New Mexico legal aid attorney is urging fire victims to try to articulate the fire’s emotional toll, if only for themselves.
Federal Judge James O. Browning’s 99-page ruling Tuesday opened the door for many fire victims, including those with low incomes or those who had little property to their names, to get compensation they’re owed for so-called “noneconomic damages” from the biggest wildfire in New Mexico history in 2022.
Much uncertainty remains about what that means. The Federal Emergency Management Agency, which is tasked with overseeing a nearly $4 billion fund for fire victims, has until late February to file a legal appeal, according to victims’ attorney Brian Colón. The agency has not yet said whether it will do so.
Even if it doesn’t appeal, the agency faces a daunting task to quantify emotional harm done by the fire and ensuing floods and establish a system to pay people fairly for what is, by its nature, a very individual type of pain.
Amid that uncertainty, New Mexico Legal Aid attorney Mara Christine received multiple phone calls this week from her clients, who were excited about the possibility of an additional type of recourse but also confused about next steps.
Christine recommended victims think about how the fire caused emotional distress and then write a list or a narrative or talk it out with a friend or spouse. Putting it into words will help when it comes to claiming noneconomic losses from the Hermits Peak-Calf Canyon Fire claims office, she said.
Questions Christine recommended as prompts: Did the emotional pain make you short of breath? Cause you to lose weight? Shorten your patience with your children?
“Really start thinking about it,” she said. “So if and when someone gets to a point of including it in a claim or a proof of loss, they have some familiarity with what they want to say.”
Christine’s main advice is for clients to call their FEMA-assigned navigator and to wait and see. Still, she predicts that, because the ruling is so new, most FEMA officials won’t know all the answers.
Deadline arriving soon
The deadline to file an initial claim for damages, known as a “notice of loss” form is 11:59 p.m. Mountain Time on Friday. The deadline doesn’t impact anyone who has already filed a claim.
The form also doesn’t need to be completely detailed with every single loss in the fire, because that information can be added later.
“Claimants can add eligible losses to their claims after the deadline through the Proof of Loss process, including for compensation that may become available in the future,” claims office officials posted on Facebook on Thursday morning.
Still, Christine said it is a “good idea” to mention noneconomic damages in a notice of loss. That can go along with economic damages, which are those types of damages with a price tag, like a burned home or structure, lost business revenue, flood damage to property and more.
Law firms that sued FEMA over the noneconomic damage issue have generally included narratives or other mention of noneconomic damages in their claim documents they’ve already filed for their clients.
But fire victims who don’t have lawyers should still be eligible for noneconomic damages, lawyers have said.
Federal judge orders FEMA to pay northern NM fire victims for emotional harm
For those who have already filed an initial claim or a completed claim, known as a “proof of loss,” it may be possible to reopen a claim and add noneconomic damages, Christine said. She again urged fire victims with that question to ask their navigators or other FEMA officials.
One big looming question, Christine said, is whether those who have already accepted a final payment offer and signed a “release and certification” form will be able to go back to FEMA for noneconomic damages.
“A lot of people already have signed that and received payment or partial payment on their claims,” she said. “So that might be the biggest question, honestly, that comes up.”
In a statement to Source New Mexico on Thursday, FEMA officials did not address a question about whether people who have signed off on their claim could still be eligible for noneconomic damages, or how that could work.
A statement from the office did say officials there are still evaluating options, including whether to appeal Browning’s ruling, in consultation with the United States Attorney’s Office and the Department of Justice.
“The claims office remains committed to compensating New Mexicans who were impacted by the Hermits Peak-Calf Canyon Fire and subsequent cascading events in a fair and equitable manner to the maximum extent permissible by law,” the statement reads.
The damages could total several hundred million dollars. That money would come from a $3.95 billion fund Congress established in late 2022 to compensate victims of the fire, which began as two botched prescribed burns that got out of control and merged that spring.
As of Dec. 18, the office has already paid out $1.65 billion in about 12,400 claims, which is about 42% of the total Congress awarded. Two congressional spending bills that included an additional $1.5 billion for Hermits Peak-Calf Canyon Fire victims failed this week, though funding could be added in future legislation.
How could it work?
In addition to the billions of dollars in damage to homes and forests, the 534-square-mile fire placed an immense emotional toll on communities in and around the burn scar. About 15,000 people were ordered to flee, and hundreds returned to find their homes destroyed.
A towering smoke plume could be seen for dozens of miles. Calls to a wildfire mental health hotline shot up in spring 2023, following a long, smoke-filled summer and cold winter in the rural, mountainous areas most affected by the blaze.
Dozens of interviews with survivors reveal widespread trauma and anxiety about future fires and floods, plus anger at the slow pace of recovery and red tape between victims and compensation.
In the scar of New Mexico’s largest wildfire, a legal battle is brewing over the cost of suffering
Colón, the fire victims’ attorney and a former New Mexico treasurer, said he called on FEMA to begin preparing a system to pay noneconomic damage payments at scale several months ago in a meeting, given Judge Browning’s comments in open court.
It’s unclear if they did so. FEMA officials did not answer that question in the statement to Source New Mexico onThursday.
Still, Colón said his firm has recommended to FEMA a system for payments based on things like whether a household lived in the burn scar in their primary residence or whether they lost a vacation home.
He recommends FEMA “have a tiered system that appropriately compensates people with an initial offer, and then allow people to submit documentation and prove that they were either harmed in a greater way, as the tiered system contemplates, or not,” he said.
One example of mass payment for noneconomic damages to wildfire victims played out in California, though it involved a private company involved in a bankruptcy proceeding. After PG&E accepted liability for wildfires in 2018, it was ordered to pay about $13 billion.
Victims received two rounds of noneconomic damage payments. In 2019, they received between $3,500 and $17,500 from a $100 million fund for emotional distress, so long as they could prove residency in affected areas, according to Joe Burns, a spokesperson for the trust paying out the claims back then.
New report totals Hermits Peak-Calf Canyon Fire losses at $5.14B, as extra funds hang in balance
Later on, victims received an additional round of payments of between $20,000 and $165,000 , based on emotional distress rated on a scale between “severe” and “mild.” Those payments were for people in the fire perimeter who experienced emotional distress or mental anguish during the fire while evacuating or sheltering-in-place, according to the Fire Victims Trust website.
One benefit of the system in California is that it allowed the trust to make payments quickly, without too many bureaucratic hurdles and without privileging those with a lot of money or property, victims’ lawyers have said.
Christine said her “pie-in-the-sky” hopes for the Hermits Peak-Calf Canyon Fire is a substantial sum paid quickly and fairly to everyone affected.
“It would be amazing if they just did that, but it’s going to be more nuanced than that,” she said. “How they’re going to choose to classify these noneconomic damages is anyone’s guess at this point.”
Colón extolled FEMA to get to work immediately and not to even consider appealing the verdict, which he said would be a “horrible decision” that would prolong matters at least six months, when all those affected need to move forward with their lives.
“They have a moral obligation to work twice as hard because they didn’t get prepared,” Colón said. “Because these folks have waited long enough. They shouldn’t have to wait any longer.”