Lower North Fork Fire, Raise the Cap?

By, An Anonymous Student

On March 26 2012 a fire now known as the Lower North Fork fire raged near Conifer resulting in three deaths and the destruction of 23 homes.  Total damage amounts to at least $11.3 million.  However, since the Colorado State Forrest Service started the fire as a controlled burn, the state has a cap of $600K against lawsuits.  The Colorado Governmental Immunity Act limits the state’s combined claims to $600,000 and is divided among hundreds of claimants. The seemingly paltry sum would barely begin to compensate the victims against the states’ negligence. Governor Hickenlooper’s solution is to centralize the command by placing controlled burns under the authority of the Department of Public Safety, instead of Local Affairs and CSU. A special state commission was recently created by Republicans to review individual claims and pay out compensation on losses not covered by insurance.  Supporters of the commission state the legislation opens up an avenue for victims to collect more than the current immunity cap. Detractors state that it sets a dangerous precedent.  How do you compensate others for legitimate claims but are limited by the $600K cap?  For cash strapped Colorado, where does the money come from?  Are Colorado taxpayers now going to have to foot the bill for prescribed burns to protect the state from possible negligence claims? Do taxpayers need to pay for homeowner damages that choose to live in high-risk fire zones?


By, Another Anonymous Student


There have been several articles on the State’s liability to home owners and families that lost loved ones during the recent Lower North Fork Fire that have caused me to pause and ask “what is wrong here?”   The answer is that several things went wrong.

First, the Colorado State Forest Service under the direction of the Colorado State University set a “prescribed burn” on March 22, 2012 during one of the driest and windiest March’s that Colorado has seen in a long time.  Second, under proper procedures, any prescribed burn is supposed to be patrolled for three days after it has been extinguished.  The North Fork Fire was only patrolled for two days.  The Jefferson County Sheriff’s office in conjunction with the U.S. Department of the Interior, U.S. Bureau of Land Management and the U.S. Forest Service investigation indicated that even if the fire would have been patrolled on March 25, that the site did not seem (appear) to be dangerous.  But on March 26, 2012 the fire reignited because of dry conditions and 80 mph wind gusts and suddenly was out of control.

Governor John Hickenlooper commissioned an investigation into the cause and origin of the fire that resulted in the death of three people, destruction of 23 homes at an estimated value of $11.3 million, the destruction of thousands of acres of land and utilities, and an unstated cost to the state for the cost of extinguishing the fire.

The commission found that (i) there was no criminal wrong doing on the part of the Colorado State Forest Service, (ii) failure in communications delayed coordination of fighting the fire, and (iii) there were problems with the reverse notification system and getting residents evacuated in a timely manner.  Specifically, the first reverse notification did not go specifically to residents in the fire’s path, the second call was placed by a private company hired by Jefferson County with to a list of homes that did not include all of the homes in the path of the fire, and door to door evacuations were sporadic and did not include all of the homes that were destroyed.  But again no one seems to be responsible.

Under the Colorado Governmental Immunity Act the state’s liability is limited to $150,000 per individual up to a total of $600,000.  Up until 1987, the maximum liability was $400,000 until the then Governor Roy Romer increased the limit to $600,000 when the Colorado Department of Transportation loosened a boulder on Berthoud Pass that killed nine passengers in a bus.   Currently there have been nine notices of intent to file suit as a result of the Lower North Fork Fire.  IREA has filed a claim of $1.2 million for destruction of transmission lines.  The American Family Insurance company has also filed a “notice of claim.”

I can understand how the liability of the state must be limited to ensure that it has the funds to continue to serve the public.  But it is the public’s tax dollars that fund the government!  Errors were made and lives and homes were lost.  The general public is required to carry all kinds of insurance to replace their belongings due to destruction and to protect against claims of liability.  Corporations also carry all kinds of insurance including large “umbrella” policies to cover the unexpected and claims that exceed stated insurance policy limits.  Why can’t the State also carry these large umbrella policies?  A total of $600,000 is a drop in the bucket.  Most states run their state agencies like a corporation, and therefore, they should also have to carry that additional insurance to protect against instances like this.  This is especially true when the State seems to pursue any individual that can be found guilty of setting a fire, whether intentionally or not, and sending them the bill for the cost associated with the extinguishing of the fire.  If it is found that a fire was set intentionally, then criminal charges are also levied against the individuals.  The Lower North Fork Fire was “intentionally” set and resulted in lose of life and property.  Since Colorado is a heavily forested state and susceptible to droughts, the State’s legislature should pass legislation to ensure that the State has umbrella insurance policies to pay for its errors that result in lose of life and property because raising the maximum total by another $200,000 isn’t going to cut it.