This is a case in which maybe our lawyer friends can chime in..or maybe folks from Region 1 know more?
When does the FS simply determine a fine, and when do they litigate (as I think they did with Sierra Pacific in California) for starting wildfires? For example, Sierra Pacific was sued for damages and fees in excess of $1 billion for allegedly causing the fire. Does it depend on the nature of the organization (profit/not for profit?)? The certainty of who started it (as per legitimacy of investigation)? The amount of damage? I guess the questions are “who decides how to proceed and what to charge?” “based on what factors”?
Why did the Chief seem to say (maybe I misunderstood) that it was up to DOJ and he has little control over the decision?
Below is the press release from Tester’s office on the hearing today. Here’s a link to the exchange with Chief Moore. Thanks to Senator Tester’s office for providing this material!
U.S. Senator Jon Tester today pressed U.S. Forest Service (USFS) Chief Randy Moore during a Senate Appropriations hearing, questioning him on the USFS’s decision to stick Vigilante Rural Cooperative, a Montana electric cooperative, with a more than $5 million bill.
Following the Deep Creek Canyon Fire, which occurred in the Helena National Forest in 2021, USFS is seeking to fine Vigilante Rural Cooperative for fire suppression costs. This decision is based on a questionable determination of fault and fails to recognize the potential for this bill to jack up costs for Montana ratepayers. Senator Tester recently called on Secretary of Agriculture Tom Vilsack to reverse the fine.
Tester began by outlining the magnitude of the fine on the operating revenue of the cooperative: “The Forest Service fined a small electric cooperative in Montana a little over $5 million for a fire in 2021. To put this in perspective, the annual operating revenue for this small cooperative is $15 million. If this isn’t crazy enough, I recently learned that there is not a process in place for the cooperative to appeal this case directly to the U.S. Forest Service.”
Tester continued to specifically note the questionable determination of fault: “While I appreciate the importance of holding folks accountable and I believe in it strongly, I can tell you the jury is still out on whether the cooperative was negligent at all. Put that together, this process seems extremely broken.”
Tester went on to outline the consequences of this fine not just on the cooperative, but on Montana ratepayers: “Chief Moore, you know very well…that fining a cooperative with a $15 million budget, one third of its revenue – a cooperative that’s been around, by the way, for 87 years – would have two outcomes. The cooperative either goes out of business, and folks lose electricity, which is pretty darn critical in the 21st century, or the cooperative has to jack up energy costs on its entire members – because cooperatives are owned by the customer – to cover the bill.”
“Given that the blame for the 2021 fire is disputable,” Tester concluded. “My question to you, Chief Moore, is how the hell did we end up here?”
Tester’s recent letter to Secretary Vilsack can be read HERE.
What a friggin’ mess; I’m no fan of Jon Tester, but he is right on this one! The FS needs to allow adequate ROW’s for transmission lines. 10’ either side of centerline? It really should be 10% wider than the tallest tree, on either side of centerline. I can hear the squawking from the enviros, but putting businesses (especially electric coops) out of business is not an acceptable solution for this day and time.
Wanna talk accountability? Let’s look at accountability of the burners of New Mexico’s two largest fires. And, I don’t mean individually, but the Line Officers responsible. They continue to smile like a cat eating a mocking bird, and yet the Feds are dropping the hammer on a small electric coop.
It’ll take federal legislation, but it’s coming; these Forests will look like gun sights on a firing range…..
I heard from a reliable source at a staff meeting this week that the feds are required to get reimbursement for damages in this type of situation, so the “it’s up to DOJ” presumably reflects that requirement.
Thanks, A! But I would have said, if that’s the case, since it’s so testy with Tester, that “x statute or reg requires a fine”, then that targets the key issue and Tester can go down that road to get a fix.
As to why fines sometimes and litigation other times, I guess that’s DOJ’s call. A TSW lawyer sent in:
“A partial explanation. When an agency is in litigation, DOJ drives the trial or any settlement or punishment. The agency has input, but can be and is ignored. Why is company X charged- prosecutorial discretion. Maybe bad facts for defendant, or defendant has an uncooperative attitude. Or maybe DOJ wants to make an example to encourage the industry as a whole to shape up. ”
I wonder if DOJ has to explain its rationale to anyone, including the ignored agency? Are DOJ communications FOIAble (I don’t think so, but…)
A quick look tells me that courts are reluctant to review prosecutorial discretion (i.e. decisions to not prosecute). I’m also fairly sure that any pre-decisional records regarding a decision to prosecute would be exempt from FOIA disclosure. If a rationale was documented in support of a prosecutorial decision, that might not be exempt, but there does not appear to be a requirement to document a rationale under the Administrative Procedure Act (unlike typical agency decisions). Here is some language from the Supreme Court (Heckler v. Chaney):
“The general exception to (judicial) reviewability provided by § 701(a)(2) for action “committed to agency discretion” remains a narrow one …, but within that exception are included agency refusals to institute investigative or enforcement proceedings, unless Congress has indicated otherwise. In so holding, we essentially leave to Congress, and not to the courts, the decision as to whether an agency’s refusal to institute proceedings should be judicially reviewable.”
Tell him that’s what insurance is for. (large unexpected costs that can be spread across a risk pool)
And ask if it makes sense that actors who cause damages are NOT held accountable.