BPA ‘willfully spoiled evidence’ at ignition site of Holiday Farm Fire, judge says

Earlier this month, a judge dealt a blow to the federal government, denying it immunity from claims by property owners seeking hundreds of millions of dollars in damages from 2020’s Holiday Farm Fire.

Now, U.S. District Judge Mustafa Kasubhai has issued sanctions affecting the government’s defense against negligence claims in multiple lawsuits against the Bonneville Power Administration, a federal agency.

Among the claims is an allegation the BPA failed to act properly to remove a “Fall-Into Danger Tree” said to have tipped onto a power line at one of two ignition sites, sparking the wildfire that destroyed more than 700 structures and killed one person.

In a blistering 27-page ruling issued Thursday, Feb. 26, Kasubhai wrote that BPA “willfully spoiled evidence because it moved trees of interest and allowed its contractors to materially disturb the ignition site without preserving evidence it knew it should, and could, preserve in reasonable anticipation of litigation.”

The judge’s “adverse inference” ruling means that missing or destroyed evidence from the ignition site “shall be construed against” the BPA. The ruling could be another blow against federal attorneys seeking to defend the agency against lawsuits filed by landowners in the wake of the devastating fire.

Kasubhai also found instances of the federal government not providing full information to parties in the lawsuit, stating, “this Court will not tolerate such insolence.”

Alex Robertson, a California attorney representing dozens of property owners seeking damages, praised the sanctions ruling.

“It upholds the rule of law, that the federal government can be held responsible just like any private party would for destroying evidence,” Robertson said Friday.

A spokesperson for Oregon’s U.S. attorney’s office cited the “active litigation” and declined to comment.

‘Substantial prejudice’

Trees and their condition are at issue in negligence claims that Kasubhai, in a Feb. 11 opinion, allowed to move forward against the federal government.

Those making claims include not only property owners and insurance companies, but also other utility companies named as defendants in lawsuits because of their role in the fire: the Eugene Water & Electric Board and Lane Electric Cooperative.

The federal agency’s “failure to preserve evidence has caused substantial prejudice” to all those with claims, Kasubhai said, issuing the “adverse inference” sanction.

As part of the sanction, federal attorneys are also barred from arguing “that the lost physical evidence works against” those with claims against the government, including claims made by the other utilities, Kasubhai wrote.

Investigation compromised

As noted in Kasubhai’s Feb. 11 order, the forecast for Sept. 7, 2020, the day the wildfire started, called for strong winds with gusts greater than 50 mph.

Findings from a U.S. Forest Service investigation identified an initial ignition near McKenzie Bridge “after a tree fell on a de-energized Eugene Water and Electric Board (“EWEB”) power line and pushed it into an energized Lane Electric Cooperative, Inc. (“LEC”) power line, energizing the entire EWEB line,” according to Kasubhai’s Feb. 11 ruling.

About 6 miles to the west, near Highway 126, a tree fell on the BPA Cougar-Holden power line, “pushing it into ground vegetation,” Kasubhai wrote in that ruling. 

In his Thursday ruling, Kasubhai outlined a timeline for the destruction of trees after the fire at the ignition site within BPA’s right of way in the Willamette National Forest.

The judge wrote that when U.S. Forest Service officials arrived at the ignition site Sept. 13, “trees in BPA’s power line corridor had already been moved and cut up.”

An investigator “observed two green fir trees laying in the power line corridor that had been ‘cut into pieces and pushed to both sides of the corridor with heavy equipment,’” Kasubhai wrote, citing a U.S. Forest Service report.

Still, evidence remained when investigators returned to the site Sept. 17 and “observed a large tree, Tree #1, lying on top of a section of transmission line and a second tree ‘that appeared to have fallen on the line as well but was subsequently cut out by BPA ground crews and moved by machine to the north side of [a] clearing.’” 

Investigators planned to conduct a 3D laser scan to document the area but were thwarted by heavy rain, and then, upon their return Sept. 20, found that the tree previously on top of the transmission line had been moved, Kasubhai wrote, citing a U.S. Forest Service report.

“The site had changed significantly, specifically the movement of tree #1 by unauthorized persons which the investigation team believes is the tree that brought the transmission line to the ground,” the investigators wrote in a portion of the report cited by Kasubhai.

The lead investigator decided to forego conducting a scan, according to the judge’s opinion.

Those with claims against the federal government “must now rely on a Forest Service investigation of an ignition site that was neither preserved in its original state nor maintained throughout the investigation,” and also do without access to a scan documenting the site as it was, Kasubhai wrote.

“At the outset, the U.S. Forest Service was unable to investigate all the evidence available at the ignition site in its original post-fire condition,” Kasubhai wrote.

Robertson, an attorney representing some but not all property owners with claims, said electrical data shows “fault events.” Such events are typically associated with arcing, a type of electrical discharge, and, in this case, “consistent with a large tree falling into” energized power lines, Robertson said. 

“We have other evidence that we believe will support a jury holding the BPA liable for starting that second ignition,” Robertson said.

‘A duty to preserve evidence’

The U.S. Forest Service began its investigation Sept. 9, 2020, to determine the fire’s cause.

Kasubhai wrote that the “record shows that BPA anticipated investigations examining the involvement of its equipment in the fire area as early as September 9.”

The judge cited evidence of a BPA supervisor asking “to be notified ‘[i]f any fire ignition investigations are taking place’ around BPA transmission lines so BPA could ‘keep [its] crews out of that area,’” Kasubhai wrote.

On Sept. 12 or the day after, the U.S. Forest Service “sent a formal preservation notice to BPA, requesting that ‘[BPA] and [its] agents preserve all evidence, including but not limited to physical evidence, photographs, records, communications, and documents, in your possession related to the Holiday Farm Fire’ and citing BPA’s duty to ‘preserve all evidence that may be relevant to any potential litigation arising from or relating to the Holiday Farm Fire,’” Kasubhai wrote, citing a statement filed in court.

“On these facts, BPA should have known that litigation over its involvement in the fire was reasonably foreseeable on September 9, 2020,” Kasubhai wrote, stating that “BPA therefore had a duty to preserve evidence” starting on that date.

Other sanctions

Kasubhai set deadlines for interviews to be provided and data to be handed over, as well as ordered some attorney fees to be paid by the federal government.

For example, Kasubhai noted the government’s “failure to adequately prepare” a BPA employee for a formal interview with attorneys representing other parties in the case.

At issue, Kasubhai found, were the instructions they provided to government attorneys about what would be discussed in the formal interview, known as a deposition.

Attorneys for the federal government had argued that the topic descriptions prepared in advance of the deposition were not specific enough, and also that they were outside the scope of what should be allowed. But Kasubhai approved the descriptions, which were supposed to be used to prepare the employee for the deposition, as part of the judge’s orders for fact-finding, known as discovery.

Kasubhai ruled that the failure to have the employee prepared for the deposition was “fundamentally motivated by its disagreement with this Court’s discovery orders.”

The judge’s opinion noted that the witness “did not know or was not aware of the answers to 122 deposition questions.”

Robertson said Friday the federal government “has engaged in stall tactics” to delay the case.

Robertson said after the judge’s ruling he’s hopeful the federal government “will start cooperating in the discovery process and hopefully resolve this case on behalf of the hundreds of victims of this terrible fire.”