Judge declines to certify government’s appeal seeking immunity from Holiday Farm Fire lawsuits

A judge has declined to certify an appeal asking for the federal government to be granted immunity from Holiday Farm Fire lawsuits.

U.S. District Judge Mustafa Kasubhai’s order Tuesday, June 30, is the latest blow to government arguments that the Bonneville Power Administration, a federal agency, should not be forced to answer allegations in multiple civil lawsuits.

Lawsuits allege the 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.

Damage claims from the 2020 wildfire total hundreds of millions of dollars, according to court records. Eugene Water & Electric Board, as well as Lane Electric Cooperative, have also been named as defendants in the lawsuits.

Kasubhai’s Tuesday order denied certification to what’s known as an “interlocutory appeal,” meaning that it would take place before a case is fully decided.

Government attorneys sought certification for an appeal seeking appellate court review of Kasubhai’s earlier ruling that denied a motion for dismissal.

For certification to be granted, the type of interlocutory appeal sought must be found to involve “a controlling question of law” with “substantial ground for difference of opinion,” according to Kasubhai’s June 30 order.

Government attorneys in their court filing referred to what’s known as the discretionary function exemption, and called it 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. 

He 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. But he did not grant immunity in connection with the tree maintenance claims.

Kasubhai stated in his June 30 order that his previous decision involved “applying binding Ninth Circuit authority to a factually intensive record developed through jurisdictional discovery.” 

A review by an appellate court would require “a fact-intensive analysis,” Kasubhai said in denying certification.

Michael Solimine, a professor at the University of Cincinnati’s Klekamp College of Law, has studied the success of what are known as “interlocutory appeals,” including the specific type of certification sought by the government in the Holiday Farm Fire litigation.

Solimine, who is not involved with the wildfire lawsuits, said in an email such appeals may be allowed because “it may be arguably unfair to require the litigants to wait till there is a final decision before being allowed to appeal the earlier” ruling.

Government attorneys, along with arguing legal points, said an appeal “could materially limit the time, effort, and expense of litigating these claims in the district court.”

But judges most often deny certification to such interlocutory appeals, Solimine said, with certification granted in about 20% of such requests.

Asked about the finality of Kasubhai’s denial of certification, Solimine said “[c]ourts hold that almost in all instances, the district court’s denial of a motion to certify … is not itself appealable.”

Speaking generally, other options exist when challenging a ruling before a final case decision, Solimine said, with the government having the option of “filing a writ of mandamus” in the 9th Circuit Court of Appeals, for example. 

“Mandamus” has been described by the U.S. Department of Justice as “an extraordinary remedy, which should only be used in exceptional circumstances of peculiar emergency or public importance.”