Judge says no immunity for BPA in Holiday Farm suits, warns against ‘slow-rolling this case into oblivion’

A federal judge said Wednesday, Oct. 8, he expects to deny a motion seeking immunity for the federal Bonneville Power Administration in Holiday Farm Fire civil lawsuits.

The ruling will be “critical” for the many dozen plaintiffs — property owners and residents — seeking a ruling on who should be liable for the 2020 blaze, said Rick Klingbeil, an attorney for some of those who filed the lawsuit.

“BPA is the primary culprit here,” Klingbeil said minutes after U.S. District Judge Mustafa Kasubhai from the bench told federal attorneys and others of his intentions after a full day of oral arguments.

A formal ruling has yet to be issued, but Kasubhai said it’s “highly likely” he’ll deny the motion for dismissal.

The cause of the fire, as stated in four civil lawsuits grouped together for Wednesday’s oral arguments, is related to energized power lines and falling trees.

The first civil lawsuit filed did not name Bonneville Power Administration as a party to be held liable, with public utilities company Eugene Water & Electric Board (EWEB) and the member-owned Lane Electric Cooperative named as defendants.

Klingbeil said “evidence developed in the case” led to BPA later being added as a defendant, adding that EWEB and the Lane Electric Cooperative remain defendants in the case.

Late in the day, Kasubhai heard complaints made by attorneys for the two other utility defendants and also for those suing for damages.

In support of a motion to release more information they say is relevant to claims made in the lawsuit, plaintiff’s attorneys argued their requests have been ignored or not given a proper response.

Attorneys cited as an example a Bonneville Power Administration vice president who they said answered, “I don’t know,” more than 115 times in response to a formal interview known as a deposition. Klingbeil said she was the most unprepared witness he had encountered in his 30-year legal career.

At the end of Wednesday’s hearing, Kasubhai said he would rule separately on the motion to compel and for sanctions. The judge said multiple times it appeared the federal government wasn’t taking seriously enough its obligations to respond to such requests, questioning whether it might be a tactical decision.

Kasubhai said “it doesn’t make any sense to me” that a single assistant U.S. attorney — Benjamin T. Hickman — and a lone paralegal had been assigned to manage the case.

It appears “that slow-rolling this case into oblivion is an angle that somebody higher up than Mr. Hickman is considering, and that doesn’t impress me much,” Kasubhai said.

Hickman had earlier said that “nobody is happy” about staffing below normal levels for federal attorneys like him designated to handle civil cases, and he also noted that “we’ve been in court on a lot of other cases involving the administration this year,” referring to the administration of President Donald Trump.

Hickman’s arguments for dismissal centered on a part of the law known as the discretionary-function exception. Claims made in the lawsuits allege that BPA’s negligence contributed to the fire’s start, in part by not removing trees considered a hazard and also by not preemptively de-energizing lines despite “red flag warning” forecasts for strong winds and low humidity.

But the law allows for immunity when the federal government can prove the conduct under scrutiny wasn’t subject to a mandatory obligation or policy and instead was considered discretionary.

Up for debate was the BPA’s use at the time of the fire of what are known as good utility practices, and whether this meant that the lines should have been de-energized.

Kasubhai said that for this specific conduct under scrutiny, he would likely side with the federal attorneys.

But after hearing arguments about a policy relating to when and how to remove trees posing a hazard, Kasubhai said he agreed with attorneys for the plaintiffs, who argued that immunity should not be granted.

In stating that he expected to deny the motion for dismissal, Kasubhai said “these are two independent causal issues” in terms of allegations related to the fire. Hickman had argued they were so closely related as to be dependent on each other.

The day began with 12 attorneys and legal support staff seated near microphones in U.S. District Court in Eugene. The attorneys formed separate huddles based on whom they represented in the many-sided lawsuit that could pay out hundreds of millions of dollars to those seeking compensation for losses from the fire.

At least two plaintiffs came to observe.

Marisa Aieta owned undeveloped land filled with what she said were “gorgeous trees” when the fire swept through.

“It was paradise, and it just all went up in flames,” Aieta said of her land on McKenzie River Drive.

A Springfield resident, Aieta said she still owns a portion of the land and came to the courthouse because she was “extremely curious about what’s going on.”

To attend the day’s hearing, Nancy Behm made the roughly hour drive to Eugene from her home on Blue River Road. The town of Blue River was mostly destroyed by the fire, and Behm described a harrowing drive from her home as the fire approached back in 2020.

Asked about outcomes to the lawsuit she thinks are important apart from any financial awards, “a lot of it is already happening,” Behm said, “because they’re changing their policies on when and how and why to de-energize lines.”

She added that “accountability and transparency are always important.”