In an Oct. 21 letter to the president of Klickitat County Public Utility District’s board of commissioners, the U.S. Bureau of Indian Affairs Yakama Agency issued a demand for payment of more than $65 million for calculated losses due to the Mile Marker 28 Fire of July 2013.
KPUD had until Nov. 21 to appeal the decision of Yakama Agency Supt. David L. Shaw to BIA’s Northwest Regional director in Portland, per the governing federal statute. It forwarded the claim letter to its attorney representing it in the Mile Marker 28 Fire matter for processing. KPUD commissioners also scheduled an executive session at the end of their Nov. 10 business meeting “to discuss recent developments” via teleconference with legal counsel.
The Yakama Agency letter demands $65,500,866.78 for calculated losses, or treble damages, as provided for in federal statute. It also claims an additional $13,924.22 per day in interest costs for each day after the stated payment/appeal deadline of Nov. 21.
“This is for a fire that we believe was caused by a Yakama Tribe logging contractor, and for a fire that could have been extinguished by the Klickitat County Rural 7 Fire Department, who was on site when the fire was one-half of one acre in size,” KPUD General Manager Jim Smith wrote in a report for the KPUD Board’s Oct. 27 meeting.
“Rural 7 was prevented from extinguishing the fire by Yakama representatives onsite at the time, as the two entities did not have the appropriate [mutual aid] paperwork in place,” Smith contends.
The Mile Marker 28 Fire started on July 24, 2013, in the Satus Pass area and burned a total of 26,773 acres of tribal and state forest land east and west of U.S. Hwy 97. About 19,732 of the acres burned were located on tribal lands inside the Yakama Reservation’s exterior boundary.
An initial fire investigation report compiled by the state Department of Natural Resources pinned the blame for the fire on a KPUD power line that paralleled a row of trees being logged by Tee Pee Creek Logging on the day the fire ignited. Company employees have denied any responsibility for the fire in statements made to DNR fire investigators in the fire’s aftermath.
The Yakama Agency alleges KPUD committed a trespass on tribal forest land because the resulting fire spread onto the reservation and damaged Yakama Nation assets; the statute defines trespass as including “any damage to forest resources on Indian forest land from activities under contracts or permits or from fire.”
Federal law and regulations allow the BIA to collect treble damages upon the highest stumpage value for the raw materials involved in the alleged trespass.
“The statute and regulations authorize civil penalties for trespass damages and there is no requirement to show willfulness or intent on the part of the trespasser to be held liable for damages,” Shaw wrote on Oct. 21.
“This trespass was a direct result of a fire ignited by the contact between tree limbs of a standing, live, approximately 80-foot-tall Grand Fir and a Klickitat Public Utility District energized conductor creating a line-to-ground fault, resulting in ignition of a fuel bed beneath the connection of the transmission line and tree limbs,” Shaw continued.
The demand letter cites the DNR fire investigation report dated May 21, 2014, which concluded that a fire was ignited by the interaction between the fir’s tree limbs and a KPUD power line.
KPUD has disputed this allegation at every turn, starting right after the fire began and up to a June 25, 2014, demand-for-payment letter from the DNR for more than $2 million in fire suppression costs.
KPUD’s position is that its power line did not initiate contact with any trees, but rather a tree came into contact with the line by some means that it believes DNR has not fully investigated.
Lately, KPUD officials have been pushing the DNR, through its legal representative in the Attorney General’s Office, to revise its fire investigation report to include all potential causes of the fire. Smith said KPUD has made two public requests for same.
“The original investigation did not look into any causes for this fire, other than tree growth into power lines, as ‘there was no other possible cause,’” Smith wrote in his report to the KPUD Board, giving emphasis to the conclusion reached by fire investigators.
Smith added, “Our understanding from the AG’s Office is that DNR is working on a revised fire investigation report, but we have had no contact from them to view any of our infrastructure and have not seen any revisions to what appears to us to be an incomplete report.”
As an aside, Smith suggested to the board that, given the state Supreme Court’s ruling denying KPUD’s motion to dismiss the Old Hwy 8 Fire case, DNR may no longer be an unbiased entity “and should not be the official fire investigation group for the State to determine cause. An unbiased third party is now required to look after the overall public interest.” He said this is an issue KPUD should take up with the AG’s Office as the Mile Marker 28 Fire case makes its way through the legal process.
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