The U.S. Forest Service initiated a prescribed burn in the Santa Fe National Forest in April 2022 that resulted in the largest and most destructive wildfire in the State of New Mexico’s history. The Hermit’s Peak fire destroyed 300,000 acres of land, leaving behind a trail of destruction for countless property owners, including those homeowners who Marzulla Law represent, and who are seeking compensation for the damage to their homes and property.

In one of the leading cases, the Government moved to dismiss Plaintiffs’ Complaint, arguing that the claims should have been brought as a tort case, not a taking case, and that the complaint failed to allege sufficient facts to state a legally cognizable taking claim.

The U.S. Court of Federal Claims, however, rejected the Government’s arguments for dismissal, including the Government’s argument that the damage from the fire could not give rise to a taking because it was caused by an isolated, one-time event. Citing recent takings cases involving one-time government-caused floodings, the Court explained that the inquiry “is whether defendant has appropriated an interest for itself in the subject property,” which goes “beyond whether [the alleged invasion] has occurred once, twice, or even a dozen times.”

The Court also rejected the Government’s argument that the Plaintiff had not adequately alleged a cognizable taking claim. The trial court stated that the complaint, which alleged that the Government lit the original fire, continued to light fires as the strong winds developed, and failed to control the fire from spreading, “plausibly alleged that the destruction of the ranches was the direct, natural, or probable consequence of the [G]overnment’s controlled burn.” The trial judge further found that the damage to the properties was foreseeable because the Government was aware of the high winds on the day of the burn.

The trial court also rejected the Government’s argument that there was no taking alleged. The CFC found that the Plaintiff had plausibly alleged that the Government’s invasion “appropriate[d] a benefit to the government at [their] expense . . . or at least preempt[ed] [their] right to enjoy [their] property for an extended period of time.” Plaintiffs’ allegations that the fire led to “blight to the property itself, the infrastructure, and the natural surroundings,” “destroyed the microcosms and seeds below the ground,” and “sterilized the top two feet of ground soil.”

Read full decision here.