QuickTake:

Attorneys for the Bonneville Power Administration, seeking to appeal a judge’s ruling, say the judge “virtually ignored” a relevant legal case that supports their arguments.

A higher court should consider whether the federal government is immune from civil lawsuits over the cause of the Holiday Farm Fire, government attorneys said in a motion filed Monday, April 13.

Damage claims from the 2020 wildfire total hundreds of millions of dollars, according to court records.

U.S. District Judge Mustafa Kasubhai in a Feb. 11 ruling allowed claims to continue about whether Bonneville Power Administration, a federal agency, failed to act properly to remove a “Fall-Into Danger Tree” that allegedly tipped onto a power line, sparking a blaze that contributed to the wildfire, which burned more than 170,000 acres.

The latest filing seeks certification for what’s known as an “interlocutory appeal,” meaning that it would take place before a case is fully decided. 

For certification to take place, the district court must agree that a “controlling issue of law” is at issue. Monday’s filing refers to what’s known as the discretionary function exemption, stating that it is the key legal issue.

Kasubhai wrote in his Feb. 11 opinion the discretionary function exemption provides immunity for some actions if they are grounded in public policy considerations. 

The government’s motion argues that a relevant legal case was “virtually ignored” by Kasubhai. Specifically, the motion states that Kasubhai did not properly consider a 2020 ruling in the case Lam v. United States, which found “the discretionary-function exception did bar claims for damages caused by a falling tree that the plaintiffs believed the Army Corps of Engineers should have removed.”

“In the government’s view, a favorable ruling on this issue would preclude the district court from imposing any liability on the government,” the motion states.

In his Feb. 11 opinion, Kasubhai granted immunity against claims relating to a BPA decision to keep transmission lines energized ahead of the fire, despite a forecast of strong winds even as he ruled that claims involving the “Fall-Into Danger Tree” could continue

Eugene Water and Electric Board, as well as Lane Electric Cooperative, have also been named as defendants in the civil lawsuits.

Requests for government emails and other data have been made as part of the lawsuits.

The motion Monday, referring to requests for information known as “discovery” in court cases, states that the “time, effort, and expense of discovery in this litigation are enormous.” An appeal “could materially limit the time, effort, and expense of litigating these claims in the district court,” the motion states.