State Judge Disagrees with Feds, Dings “Reprehensible” CalFire $30 Million for Moonlight Fire

Thursday, February 06, 2014
Red Rock lookout

In an epic legal battle befitting the epic Moonlight Fire in 2007 that inspired it, a California Superior Court judge Wednesday contradicted a 2012 U.S. District Court finding, and delivered a scathing rebuke (pdf) to the California Department of Forestry and Fire Protection (CalFire) and the state attorney general for blaming the blaze on Sierra Pacific Industries.  

Judge Leslie C. Nichols, sitting by appointment in Plumas County Superior Court, ruled that there was not enough evidence to prove the company was responsible for the fire, tossed the state’s lawsuit and ordered it to pay more than $30 million in legal and other expenses.

But first he took a deep breath.

Judge Nichols said he would use language no more forceful than that used by appellate courts, although he implied he would like to. He also declined to take the ill-advised step of making “broad moral or existential pronouncements” although, again, he seemed inclined to do so.

And then the judge lit into the state: “The court finds that Cal Fire’s actions initiating, maintaining and prosecuting this action, to the present time, is corrupt and tainted. Cal Fire failed to comply with discovery obligations, and its repeated failure was willful.”

He called CalFire’s behavior “egregious and reprehensible” and wrote:

“The sense of disappointment and distress conveyed by the Court is so palpable, because it recalls no instance in experience over forty seven years as an advocate and as a judge, in which the conduct of the Attorney General so thoroughly departed from the high standard it represents.”

Nichols said “the misconduct is so pervasive that it would serve no purpose for the Court to attempt to recite it all here.” But he took a stab at it:

“CalFire failed to comply with discovery orders and directives, destroyed critical evidence, failed to produce documents it should have produced months earlier, and engaged in a systematic campaign of misdirection with the purpose of recovering money from the Defendants.”

The Moonlight Fire scorched 65,000 acres in Plumas and Lassen counties and neighboring states. It burned for two weeks, killing 15 million trees, some more than 40 years old. Sierra Pacific settled with the federal government for $122.5 million in cash and land after a federal judge indicated the company could still be found liable even if it didn’t start the fire.

Sierra Pacific denied the state’s allegation that a bulldozer owned by one of its subcontractors threw off a spark that started the blaze. It accused CalFire of multiple instances of negligence and noted internal documents from the U.S. Forest Service that told a sordid tale.

Ranger Karen Juska reported to her superiors that the day of the fire she found Forest Service employee Caleb Lief standing on the Red Rock station catwalk urinating on his bare feet (an old trick for curing athlete’s foot, she was told), while inside the cabin she saw a glass pipe and detected the smell of marijuana. (Justa also claimed she saw marijuana in the cabin on an earlier visit.) In the distance, she noticed what Lief did not: a rather large plume of smoke rising from the direction of the Sierra Pacific property.

The initial Forest Service report in 2009 made no mention of marijuana, which Lief denied was present, and the U.S. filed suit shortly afterward, seeking compensation for habitat and wildlife losses. The marijuana issue didn’t surface until 2011 in a fire-related civil suit. 

Lief was fired in 2009 after Juska claimed he threatened her with a screen door at Red Rock. Documents about the marijuana allegation were filed in the Moonlight Fire suit, but the Forestry Service attempted to have those records sealed.

At first, Sierra Pacific claimed there was a cover-up and indicated it wanted the pot smoking allegation to be part of its liability defense, but eventually said it wouldn’t press for unsealing the documents in deference to the government’s wishes. The agency maintained throughout that the allegations were unproven and irrelevant. 

After Sierra Pacific, one of the nation's biggest timber products companies and the largest private landowner in North America, settled with the feds, it vowed to fight on through half a dozen lawsuits filed in Plumas County. There, the company could argue it wasn’t their fault and resurrect some of the arguments that weren’t going to carry the day in federal court.  

The cases were consolidated and assigned to Judge Nichols. His legal order Wednesday acknowledged that there would continue to be litigation over the fire and that he was glad to be rid of the case. He evoked Shakespeare’s Othello, former U.S. Senator Joseph McCarthy and Albert Einstein. (“Are the Higgs Boson and Albert Einstein accomplishments worth only a nickel, because one is invisible to the naked eye and the other can be expressed in such a sort equation?”)     

But he summed up his thoughts while recalling a conference call with attorneys late in the proceedings over what would come next. He could barely contain his urge to burst into song. “Que Sera, Sera. The future’s not ours to see. What will be will be. Que sera, sera.”

–Ken Broder


To Learn More:

Judge Orders Cal Fire to Pay $30 Million for “Reprehensible Conduct” in Moonlight Fire Case (by Denny Walsh and Sam Stanton, Sacramento Bee)

Timber Company Vows to Keep Fighting after Record Moonlight Fire Settlement (by Ken Broder, AllGov California)

Mammoth Moonlight Fire Claim Settled as Governor Pushes to Limit Such Suits (by Ken Broder, AllGov California)

Orders on Motions to Tax Costs and for Attorney Fees, Expenses, and Sanctions, and Motions re Privilege (Plumas County Superior Court of California) (pdf)

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