Jury selection in 2020 Oregon wildfire lawsuit against PacifiCorp begins Monday
A $1.6 billion class-action lawsuit that accuses the utility PacifiCorp of failing to shut off its power lines during extreme fire danger in September 2020 heads to trial Monday. It is likely the first time a utility has taken such a class-action case to a jury trial.
Gates resident Bill Edge had gotten used to the distant glow of the Beachie Creek Fire by the night of Sept. 7, 2020.
With fierce winds gusting more than 50 miles an hour that night, he was pacing his house to check on the fire, which had been burning for weeks since it started about 15 miles from town in the Willamette National Forest.
“I was going back and forth to the window,” Edge told an attorney in 2020. “There’s something in the back of your mind that says, ‘Well, maybe you’d better not go to sleep.’”
Around 10:15 p.m., he saw an explosion he thought was an electrical transformer blowing up. Fifteen minutes later, there was another blast. Then, he saw smoke and an orange glow hovering over his town in the Santiam Canyon east of Salem.
“I don’t know how it would’ve came from Beachie that quick,” he said in 2020. “For days, we’d been watching the fires up there, but I don’t think it’s the same fire.”
The power was still on at his house as he packed up to evacuate. His son came by and reported seeing sparks coming from the power lines. At least a dozen other residents in the area called 911 that night to say they also saw power equipment sparking or exploding.
Edge is one of 17 named plaintiffs in a $1.6 billion class-action lawsuit that accuses the utility PacifiCorp of failing to shut off the power that night, allowing damaged electrical equipment to start fires that destroyed homes.
The Santiam Canyon fire was one of many that burned across Oregon during an unprecedented windstorm Labor Day weekend in 2020. The fires were the most costly in Oregon history, killing at least nine people, demolishing thousands of homes, and burning more than 1 million acres statewide. State and federal estimates of the financial costs ranged from $622 million to over $1 billion, but federal investigations of those fires are still ongoing, and it’s unclear how much of the damage can be tied to power lines.
Edge, 60, lost his two-bedroom house, a toolshed and almost all of his belongings to the fire that burned through Gates. He spent the past two years rebuilding, went into debt to finish the construction and just moved into his new home two months ago.
“Up until then, technically, we had no place to live,” he told OPB last week. “It’s been a nightmare ever since it happened. … My whole life’s flipped upside down.”
Insurance money helped Edge replace much of what he lost but not everything. Family photos and keepsakes from his parents and grandparents are irreplaceable.
“We took a big loss, and we are attempting to put everything back together close to what they used to be, but they’ll never be what they used to be,” he said. “You don’t get it back. You start over.”
A trial in the class-action lawsuit is scheduled to begin Monday, though the parties have told the court they are in ongoing mediation talks to reach a settlement. If the negotiators don’t reach an agreement, the case will likely be the first time a class action against a utility over wildfires has gone to trial, according to attorneys who spoke to OPB.
PacifiCorp — a subsidiary of billionaire investor Warren Buffett’s Berkshire Hathaway — has paid out settlements before related to wildfires in Oregon, including for a Southern Oregon fire that its equipment allegedly started in 2020. If a jury finds PacifiCorp was negligent in how it handled the Labor Day fires, it could result in a massive payout for plaintiffs in the case, and a larger class of about 2,455 people who had property damaged by the Echo Mountain complex, South Obenchain, 242, and Santiam Canyon fires. The fires affected Lincoln, Jackson, Klamath, Marion and Linn counties.
Despite the financial risk involved, PacifiCorp appears likely to take the case to trial. The company has declined to comment on the litigation.
Here are some key questions ahead of the trial.
What is PacifiCorp accused of doing?
The main complaint in this lawsuit revolves around whether PacifiCorp turned off its electrical lines and equipment in areas at extreme risk for wildfires on Labor Day weekend in 2020.
The months leading up to the fires had been very dry in Oregon, and fire danger became significant as the state braced for strong east winds. On the Friday before Labor Day — Sept. 4, 2020 — the National Weather Service warned people of the elevated fire risk because of the gusty winds.
Hours before the Sept. 7 weather event, state officials said they also directly warned PacifiCorp and other power providers to de-energize some of their lines.
Plaintiffs in the case allege PacifiCorp ignored those warnings and kept its electrical equipment charged through densely wooded areas, such as the Santiam Canyon, as the weather intensified. Other power providers, including Portland General Electric and Consumers Power, which serves the Santiam Canyon, turned some of their lines off.
A 2021 investigation by OPB confirmed 13 callers to 911 in Marion County reported power line fires and explosions between 6 p.m. and 10 p.m. on Labor Day, as tree limbs and power poles fell due to high winds.
“The catastrophic losses could have been prevented; these community-destroying fires were not inevitable,” attorneys for the plaintiffs write in their complaint.
The Northwest Interagency Coordinating Center estimated in its 2020 fire season report that the Echo Mountain complex, South Obenchain and 242 wildfires burned just under 50,000 acres, and destroyed approximately 430 structures. Fire acreage for the Santiam Canyon fires are more difficult to estimate because those fires were eventually subsumed by the Beachie Creek Fire, which started in the old growth forests of the Opal Creek Wilderness and spread through Santiam Canyon as the winds pushed it eastward. In total, the Beachie Creek Fire destroyed more than 193,000 acres and approximately 1,323 structures.
Is there evidence PacifiCorp equipment started some of the fires?
The causes of the wildfires will be a central debate during the trial. People whose homes burned point to the 911 calls and other eye-witness accounts gathered ahead of the trial as evidence that PacifiCorp equipment, operated by Pacific Power, sparked fires across the state.
One of the fires that can be most clearly linked to Pacific Power equipment ignited at the Gates School, where a fallen power line appeared to start a brush and structure fire. Firefighters with Incident Command Team 13 had gathered at the school grounds as they fought the Beachie Creek Fire, which at that time was about 10 miles away near Opal Creek.
Firefighter Todd Meyer was one of the people who called 911 that night, reporting the downed line.
“We’ve got brush fires going, lines down and a structure fire,” Meyer told the dispatcher. “It started with lines down. … Send a full response. I’m a firefighter.”
Court records show jurors in the case are likely to see a wide array of evidence, from internal communications among PacifiCorp staff to photographs and testimony from fire experts. Attorneys for the plaintiffs have also accused PacifiCorp of collecting equipment and vegetation in the days and weeks after the fires to dispose of it, and avoid scrutiny.
In a deposition with attorneys, PacifiCorp claims adjuster Marlow Vass said equipment collected from the Gates School fire was “taken to one or two spots and then probably taken to a dump.” The plaintiffs allege similar equipment removals happened at the Echo Mountain Complex fires and elsewhere before investigations could be finished.
What is PacifiCorp’s defense?
As recently as April 7, PacifiCorp attorneys argued in court that this case does not meet the criteria for a class-action lawsuit. PacifiCorp has previously said its liability would need to be argued for each fire-damaged property and not through a class-action complaint. Multnomah County Circuit Court Judge Steffan Alexander rejected that argument, but a trial memo for the case indicates attorneys for PacifiCorp “anticipate” raising similar issues in court, suggesting at least part of their arguments against the case will revolve around technical definitions for the class.
Depositions collected by PacifiCorp attorneys also suggest the company may dispute the origin of particular fires.
On March 30, an attorney for PacifiCorp questioned James Ronald Clough, a 76-year-old Gates resident who lives near Potato Hill in the Santiam Canyon. Clough said he awoke after 9 p.m. on Labor Day 2020 to find his power out.
“Sometime between 10:30 and 11:00 it was like a meteor shower coming in from the northeast and we had embers; some of them bigger than a softball, some of them little tiny ones,” Clough told the attorneys. “I had thousands of embers on my property, all over my roofs.”
Though PacifiCorp has declined to publicly comment on the case, it’s possible the company’s attorneys will argue high winds carried those embers east from the Beachie Creek Fire and started new fires near Gates.
Clough also said he didn’t see power equipment on his property damaged, though he did notice some damage on an adjacent property.
PacifiCorp may also hope to sway jurors who think the fires could have been stopped if firefighters had been able to suppress the Beachie Creek Fire, which lightning ignited weeks earlier deep in the national forest. Ralph Bloemers, an environmental attorney who has conducted extensive interviews with victims of the 2020 wildfires but is not involved in the case, said PacifiCorp could use public opinion about federal land managers to its advantage.
“I think there may be an element where they’ve done the research,” Bloemers said. “They have looked at the polling and they have looked at views, and people think it’s a forest mismanagement thing.”
What do official investigations say about the cause of these fires?
State and federal agencies have not yet completed their investigations of the wildfires at the center of this lawsuit, so there are no official findings on how each of the fires started or the role power lines played in the Santiam Canyon, Beachie Creek, South Obenchain, Echo Mountain complex and 242 fires.
The Oregon Department of Forestry still has 18 ongoing investigations into fires that burned across 1.2 million acres of Oregon in 2020, according to agency spokesperson Jessica Prakke.
The 2020 fires spread quickly, burned a lot of acreage, and created a backlog of investigative work for the state’s five contractors, Prakke said.
“We recognize this is over two years after the fact and that the public has been patiently waiting for the final investigation reports,” she said in a written statement.
“The complexity and sheer number of fires on the landscape at one time is a lot for an agency to handle. … We are moving as quickly as we can while ensuring a complete, accurate and thorough accounting of these devastating events.”
Under Oregon law, the investigations are not publicly available while they are ongoing and they are exempt from public records disclosure if there is a chance the state will pursue litigation against a responsible party.
The Oregon Department of Justice, which represents ODF in wildfire investigations, also declined to share information about the investigations.
Federal inquiries are also slowly unfolding behind closed doors. The U.S. Forest Service is still investigating the Beachie Creek Fire, which overlaps with the Santiam Canyon Fire acreage, according to agency spokesperson Jennifer O’Leary Risdal. The Forest Service is also leading the 242 Fire investigation, but O’Leary Risdal declined to comment on its status.
How much could plaintiffs receive if they win this lawsuit?
The named plaintiffs in the case are seeking at least $1.6 billion — $600 million in economic damages, and $1 billion for suffering and emotional pain related to the wildfires. If they prevail, the actual amount of damages owed would be determined by the jury. In the event jurors decide PacifiCorp is liable, the company could potentially owe even more money to a larger, unnamed class of people harmed by the fires.
The complaint also requests that PacifiCorp pay for reforestation efforts in the affected areas, and it could owe further punitive damages, which a judge recently noted would be an option. The plaintiffs also want the court to require PacifiCorp to turn off its power lines in the future in parts of Oregon “experiencing extremely critical fire conditions,” among other fire mitigation measures. All of those measures would be decided only if the trial determines the utility was negligent.
Fire victims like Edge, the Gates resident who lost his home, want answers and accountability.
“To me, there’s a starting point where they could have controlled it better and it wouldn’t have gotten out of hand, maybe,” Edge said.
If he wins his case, Edge said he’ll use whatever damages he’s awarded to move away from Gates.
“There’s too many triggers and memories here,” he said. “I just want to start over somewhere else.”
Copyright 2023 Oregon Public Broadcasting