BNSF to pay million dollar settlement to victims of wildfire

[CHamilton]

Railroad to pay million dollar settlement to victims of wildfire

KING 5 has learned that Burlington North Santa Fe (BNSF) railroad will pay a million dollar settlement to three families who lost their homes in a wildfire along the Columbia River Gorge in 2007.

A source familiar with the agreement filed in Seattle Federal Court says the settlement is expected to be finalized later this week and a lawsuit that was filed nearly five years ago will be dismissed.

A BNSF contractor was performing track maintenance, called grinding, in Skamania County in August of 2007. The grinding machine spews sparks and embers and it reportedly triggered several spot fires on the hot and windy August day.

In spite of this, the crew kept grinding and triggered a major fire near Broughton Mill in Skamania County. Video shows the flames racing up the Columbia River Gorge and destroying homes in the White Salmon area.

 

[Blackwolf]

I suspect that Washington State did not, and may not still, have a law in 2007 similar to California's where a fire caused by negligence (such as the rail maintenance crew in this case knowing they were starting fires with their work and not stopping) is automatically cause for what we call "cost recovery" in the profession. If this was a California based incident, then not only would the private citizens who lost property be able to claim their loss with the State and seek repayment (or their insurance company for that matter,) but all costs of fire suppression and land repair would be charged to the negligent party. This is in addition to any criminal charges filed, such as Felony reckless endangerment and Felony negligence. Yes, if the job foreman did indeed know they were starting fires and did not alter their work or outright stop it to mitigate the issue, that individual could be arrested and charged for their actions and personally loose their freedom as a result.

PG&E (Pacific Gas & Electric Company) here in California has found this out the hard way, both with wildfires caused by faulty equipment or work, as well as through that infamous San Bruno gas explosion back in 2010. A handful of PG&E personnel have been criminally charged, including serving jail time. Railroads in California are also familiar with these laws, have felt their wrath in the past, and usually have whole firefighting trains set up to follow road work where a fire may be sparked. The Southern Pacific would have been driven out of business by these laws (which came about around 2003) if they were still around and running decrepit and poorly maintained trains like they did in the 1990's.

Nothing like bill for a few million and the imprisonment of an employee or two to make companies REALLY make sure they don't start fires any longer!

 

[oregon pioneer]

A million dollars each is not enough for view property in the Columbia Gorge!

 

[AlanB]

Railroads in California are also familiar with these laws, have felt their wrath in the past, and usually have whole firefighting trains set up to follow road work where a fire may be sparked. The Southern Pacific would have been driven out of business by these laws (which came about around 2003) if they were still around and running decrepit and poorly maintained trains like they did in the 1990's.

Actually, since RR's operate under Federal rules and not State rules, I have to wonder if the RR's when hit with a big fine wouldn't turn to a Federal court for relief. RR's in the past have paid local tickets for blocking the crossing when the town wasn't particularly abusive with the number of tickets; it was just cheaper to pay them. But towns that thought that they had found a new cash cow and went nuts with the number of tickets soon found their laws overturned in Federal court.

This is not to suggest that the RR's can't still be pursued by privately individuals for their losses caused by the company starting a fire. But again, I do have to wonder if pushed too hard by the State of CA if the RR's might not seek relief from the Fed.

 

[George Harris]

This is not to suggest that the RR's can't still be pursued by privately individuals for their losses caused by the company starting a fire. But again, I do have to wonder if pushed too hard by the State of CA if the RR's might not seek relief from the Fed.

California has already found that out in the past. Effectively the Feds pulled the teeth of the CPUC (California Public Utilities Commission) in the past. It was downright funny to look at the CPUC's web and press releases after the Chatsworth collision. They made it look like they were guiding the NTSB in their investigation which of course they were not nor did they have any authority on the scene at all.

 

[Blackwolf]

Railroads in California are also familiar with these laws, have felt their wrath in the past, and usually have whole firefighting trains set up to follow road work where a fire may be sparked. The Southern Pacific would have been driven out of business by these laws (which came about around 2003) if they were still around and running decrepit and poorly maintained trains like they did in the 1990's.

Actually, since RR's operate under Federal rules and not State rules, I have to wonder if the RR's when hit with a big fine wouldn't turn to a Federal court for relief. RR's in the past have paid local tickets for blocking the crossing when the town wasn't particularly abusive with the number of tickets; it was just cheaper to pay them. But towns that thought that they had found a new cash cow and went nuts with the number of tickets soon found their laws overturned in Federal court.

This is not to suggest that the RR's can't still be pursued by privately individuals for their losses caused by the company starting a fire. But again, I do have to wonder if pushed too hard by the State of CA if the RR's might not seek relief from the Fed.

The precedence has been set, believe it or not, with railroads in the US having to pay for the damages they caused regarding fires. Using the California law as the basis for pursuing Cost Recovery, the USDA Forest Service (Federal agency, acting in cooperation with the California Department of Forestry and Fire Protection (my employer,)) sought repayment of fire suppression and damage costs from the Union Pacific Railroad to the tune of $102 Million. This was due to a fire ignited by track welding in Plumas County in 2000. The negligence in this case was due to the UPRR not calling the fire department after starting a fire, and not having adequate firefighting equipment and training for its use at the scene of a work project with a high risk of causing a fire. Workers testified that they thought the fire was under control after briefly fighting it, then returned to their work and moved from the area; a freight train passing through later in the day stirred up the smouldering fire, which ended up burning more than 52,000 acres.

The UPRR, understandably so, fought the Cost Recovery charge very strongly and eventually the case landed in Federal court. In February of 2008, the Federal judge handed down his verdict against the UPRR, and the railroad has paid the bill in full. Since then, many more cases have gone before judges and in every one where negligence was a proven factor the company has lost.

Here is an Associate Press article from July 2008, reported through the New York Sun newspaper: http://www.nysun.com/national/union-pacific-to-pay-102-million-for-forest-fire/82418/

In this case, a State law has become very useful for the Federal government and companies could stand to see very little relief in appealing to the Feds. Its this case in particular that I believe the UPRR now places so much emphasis on having firefighting equipment (fire trains,) personnel trained on its use, and a hair trigger to call the fire department when something does pop up. And it's not just major companies seeing the bill for a fire being sent their way; private citizens found guilty of causing fires through negligence of any kind are being sent Cost Recovery notices. Light a burn pile on a windy, dry day that ends up escaping and burning onto your neighbor's property: get a bill for the full cost of fighting the fire. That could be anywhere from $10k through $10 Million these days, depending on how big it got. And that bill would be separate from any civil lawsuits filed by said neighbor for damages.

I guess the moral of the story is: Don't start a fire in California!! :help:

 

[AlanB]

Blackwolf,

That case you linked to has nothing to do with the California law at all. It was Federal from the start because it was Federal parks that saw the damage and burned. Nothing in that article even mentions anything about the California law. Furthermore, you stated that the CA law came about in 2003 or there about. The fire in the story took place in 2000, so the law could not possibly be applied retroactively.

And it is also quite likely that part of the issue was the fact that the crew did nothing really to fight the fire, much less call it in. It should also be noted that the court didn't order UP to pay anything. UP settled with the Fed after a judge ruled that the case could go to trial and that there would be no limit on liability if the case went to trial.

Had that been a California State forest and assuming that the crews had done the right thing, it is quite likely that the State would have been unable to recover any money, or at least found its recovery limited. Again, the Fed has ruled more than once that moving freight by rail is essential to the well being of the US and that local laws cannot interfere with that function. Therefore and I fully admit that I'm not a lawyer, it would not surprise me to see that had a RR crew done everything possible and correctly to prevent a fire in the first place and if they had done everything properly after seeing that a fire had started, that a Federal judge might well rule that the State cannot collect anything or perhaps limit what the state can collect, based upon the need to fix the rails to move that freight considered essential.

 

[Blackwolf]

Blackwolf,

That case you linked to has nothing to do with the California law at all. It was Federal from the start because it was Federal parks that saw the damage and burned. Nothing in that article even mentions anything about the California law. Furthermore, you stated that the CA law came about in 2003 or there about. The fire in the story took place in 2000, so the law could not possibly be applied retroactively.

And it is also quite likely that part of the issue was the fact that the crew did nothing really to fight the fire, much less call it in. It should also be noted that the court didn't order UP to pay anything. UP settled with the Fed after a judge ruled that the case could go to trial and that there would be no limit on liability if the case went to trial.

Had that been a California State forest and assuming that the crews had done the right thing, it is quite likely that the State would have been unable to recover any money, or at least found its recovery limited. Again, the Fed has ruled more than once that moving freight by rail is essential to the well being of the US and that local laws cannot interfere with that function. Therefore and I fully admit that I'm not a lawyer, it would not surprise me to see that had a RR crew done everything possible and correctly to prevent a fire in the first place and if they had done everything properly after seeing that a fire had started, that a Federal judge might well rule that the State cannot collect anything or perhaps limit what the state can collect, based upon the need to fix the rails to move that freight considered essential.

Alan, I'm not going to argue symantics with you, but I am not making up the information being provided. This said, let me point out that in this particular case the Federal Government pursued the charges in conjunction with both the USDA Forest Service and CalFire (CDF). When it comes to firefighting in California, you don't only get Federal forces on Federal incidents or vise-versa. Often, especially in Southern California, a fire on Federal land may have State resources taking the Initial Attack responsibilities. We have something called the Master Mutual Aid Plan, which means that in the event of an emergency that overwhelms the local resources (in this case, the Plumas National Forest,) outside resources automatically are dispatched into the incident and boundaries between local, State and Federal are dropped. That means that long after the emergency has been mitigated, when it comes to repayment of the costs associated, there are a set list of guidelines that are followed which often leads to multiple agencies working together once again.

And the California laws were used, quite successfully in court even, retroactively because the recovery proceedings did not begin until 2004. In this case, the UPRR had already taken responsibility and stated that the fire was caused by their negligence.

Again, the UPRR (and the BNSF as the other major player in this state watching from the side-lines but with their own negligence-caused fires in proceedings at the time) did realize their mistake and have taken great strides in making sure they avoid being charged with such gross negligence again.

Fire is my profession. I just happen to like trains and travel on them when I can. I'm not a lawyer, true, but I am a fire expert (having even been asked to testify in court as such an expert in the past.) Negligence is no joke, even when committed by a major player acting in the transport of major Interstate Commerce.

 

[AlanB]

I'm not trying to argue semantics here at all Blackwolf. But there is simply nothing in that story you linked to that mentions anything about the State of California getting a dime. Everything is about the Fed. The only mention of California comes from the fact that the fire occurred within the State of California.

Therefore there is NO way to conclude from the evidence at hand that a state suit would have been successful.

And again, I think that one of the key points in all of this is the fact that in this case it is clear that the RR was negligent. If the crew had tried to fight the fire and called for help immediately, then there might not be the negligent factor involved here, which could turn how the case is decided.

Finally, when a case goes to trial has nothing to do with applying a law. Except in rare cases where explicitly stated within the law, most laws are not retroactive. The law must be in place when the crime is committed. If not, then the law cannot be applied; again assuming that specific language wasn't included making the law retroactive.