A nearly two-year court battle finally came to an end late last month, with a federal judge ruling — again — that the Federal Emergency Management Agency must pay Hermits Peak-Calf Canyon Fire victims for the emotional toll of the state’s biggest-ever wildfire.
The agency told Source New Mexico on Friday that it is still deciding whether to appeal the ruling, potentially beginning another multi-year court battle.
Plaintiffs initially sued FEMA in October 2023 for illegally withholding payments for the “noneconomic damages” they suffered in the wildfire, which means they weren’t compensated for the emotional toll of the fire.
Judge James Browning ruled in favor of plaintiffs in December 2024 and, in a 142-page opinion issued July 18, denied FEMA and federal prosecutors’ push for him to reconsider key aspects of the prior ruling, which orders FEMA to immediately pay both economic and “noneconomic” damages to victims.
In the scar of New Mexico’s largest wildfire, a legal battle is brewing over the cost of suffering
The July 18 opinion could signal an end to the legal battle spanning two years in Browning’s courtroom, but it also could mean the beginning of a new one: FEMA and the United States Attorney’s Office have 60 days from the date of Browning’s latest ruling — Sept. 16 — to decide whether to appeal the case to the Tenth Circuit Court of Appeals, according to FEMA and plaintiff’s attorney Brian S. Colón.
An appeal could mean an additional delay of around two years, according to Ty Tosdal, another plaintiff’s lawyer.
Neither the FEMA office overseeing a multi-billion-dollar compensation fund nor federal prosecutors would say whether they intend to appeal. In statements provided to Source NM, both offices said they are evaluating the decision.
“FEMA will determine next steps and provide further information as it becomes available,” a spokesperson told Source via email on Friday. Acting United States Attorney Ryan Ellison is “reviewing the Court’s opinion,” said spokesperson Tessa Duberry.
Congress awarded FEMA $5.45 billion to compensate victims of the 2022 wildfire, minus administrative costs, because it resulted from two botched prescribed burns that the United States Forest Service ignited. The fire burned an area roughly 534 square miles, along with several hundred homes, and resulted in ongoing post-fire flooding in communities in and around the burn scar, including Las Vegas, N.M.
Hermits Peak-Calf Canyon Fire victims still wait on FEMA’s decision to appeal judge’s ruling
Lawyers estimate that the total paid in “noneconomic” damages would be about one-tenth of the amount Congress awarded, amounting to about $545 million. According to the latest figures from the claims office, FEMA had paid out $2.782 billion in roughly 20,000 claims for damage as of July 29.
Tosdal recently raised concerns about the long wait for resolution and compensation. He highlighted the case of one of his clients, Marianna Lands, who is dealing with the aftermath of a stroke that she said was caused by the stress of the fire.
While fire victims wait for an answer, a claims office spokesperson said they don’t need to take any additional action on their claims regarding “noneconomic damages” and that it is steadily paying out other types of losses.
“The Claims Office continues to compensate claimants for compensable losses,” the spokesperson said, and is doing so “to the maximum extent permissible.”
Source New Mexico is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Source New Mexico maintains editorial independence. Contact Editor Julia Goldberg for questions: info@sourcenm.com.