Ninth Circuit allows recovery for intangible environmental damages to national forest caused by fire

United States v. CB&I Constructors, Inc.

June 29, 2012

Ninth Circuit No. 10-55371

The United States filed an action against a contractor that failed to follow several fire prevention precautions and used equipment while constructing steel water tanks. Sparks caused a fire that consumed 2000 acres of county and privately owned property as well as 18,000 acres of Angeles National Forest. The Ninth Circuit affirmed the jury award of $7.6 million for economic damages and $22.8 million for “intangible environmental damages” despite the absence of expert opinion as to the value.

California Civil Code section 3333 governs tort damages and allows an “amount which will compensate [the plaintiff] for all the detriment proximately caused …” by the negligence. The measure of damages is flexible, the Court noted. Health & Safety Code section 13007 places no restrictions on the type of damages that can be recovered for a negligently set fire. The Court found the jury had the power to award an amount for intangible environmental damages based on their assessment of the evidence. The $22.8 million was based on $1,600 per acres in the Forest. Because there is no comparable market value for a park, the Court held it was permissible for the jury to exercise its own discretion in determining a value. Such award was defensible because there was evidence of the “nature and character” of the damaged forest. The government presented evidence of extensive damage to public use, harm to animal habitat, soil, plant life, and the California Red-Legged-Frog, as well as destruction of an historic mining camp.

The Court disagreed with the defendant that noneconomic damages were not recoverable in a real property damage case, stating the cases relied upon simply disallowed recovery for emotional distress or suffering. This case appears to have opened up a new way of assessing damages to land. The question will be how far this novel approach will fly.

Prepared by John Reaves


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